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THE    LAW 


OF 


INTERSTATE  COMMERCE 


AND    ITS 


FEDERAL  REGULATION 


BY 

FEEDEEIOK  K  JUDSON 

Of  the  St.  Louis  Bar 


CHICAGO 

T.  H.  FLOOD  &  CO. 

1905 


190  S' 


Copyright,  1905, 

BY 

T.  H.  FLOOD   AND   COMPANY 


I    JOURN  \l.  PRINTING  COMPANY, 

PRINTERS  ami  Si  i  ! 

MADISON,  WIS. 


To  Honorable 

WILLIAM   HOWARD  TAFT,  LL.  D. 

One  time  Judge  of  the  Circuit  Court  of  the  United  States 

whose  name  is  written  large  upon  the  pages  of  the 

judicial  history  of  Interstate  Commerce. 


PREFACE. 


The  purpose  of  this  book  is  to  present  in  a  compact  form 
the  law  of  interstate  commerce  as  declared  by  the  courts  since 
the  adoption  of  the  Constitution,  and  also  as  enacted  by  Con- 
gress and  applied  by  the  Interstate  Commerce  Commission 
in  the  direct  exercise  of  the  power  of  federal  regulation.  The 
book  has  been  written  under  the  conviction  that  the  direct 
federal  regulation  of  interstate  commerce,  though  it  only  dates 
since  the  close  of  the  Civil  War,  has  come  to  stay. 

The  rules  declared  by  the  Interstate  Commerce  Commission 
in  the  eighteen  years  of  its  existence,  though  its  powers  have 
been  in  some  respects  curtailed  by  the  judicial  construction  of 
the  Interstate  Commerce  Act,  have  made  a  body  of  admini- 
strative railroad  law  which  seems  properly  included  in  a  trea- 
tise of  this  character.  Every  phase  of  the  complex  adjustment 
of  railway  rates  has  been  considered  by  the  Commission,  and 
their  rulings  in  this  infinite  variety  of  cases  have  a  permanent 
value  in  the  solution  of  the  transportation  problems  of  the 
future. 

In  the  annotation  of  the  Interstate  Commerce  Act  it  has 
been  the  aim  to  cite  such  only  of  the  rulings  of  the  Commis- 
sion, as  are  illustrative  of  the  practical  enforcement  of  the  Act 
under  the  limitations  of  their  powers  as  declared  by  the  Su- 
preme Court. 

The  limits  of  the  unexercised  power  of  federal  regulation* 
can  be  intelligently  considered,  only  with  a  clear  apprehension! 
of  what  the  Supreme  Court  has  declared- in  determining  the 
line  between  federal  and  State  authority,  as  with  few  excep- 
tions the  decisions  of  the  Court  in  interstate  commerce  have 
declared  what  the  States  can  and  cannot  do,  and  not  what 
Congress  can  or  cannot  do. 

In  view  of  the  present  agitation  for  the  amendment  of  the 
Interstate  Commerce  Act,  as  well  as  for  other  new  legislation 
in  the  regulation  of  interstate  commerce,  it  is  well  to  ascer- 
tain what  has  been  done  under  federal  regulation  in  the  past 

and  what  can  be  done  under  existing  laws  in  the  future.    It  is 
I) 


Vi  PREFACE. 

the  aim  of  this  book  to  state  without  needless  amplification  or 
iteration  the  existing  law.  as  its  rules  have  been  judicially 
formulated,  and  the  interesting  questions  of  public  policy  con- 
nected with  this  subject  have  therefore  not  been  discussed.  The 
difficulty  of  applying  these  rules  of  law  thus  judicially 
declared  to  the  complex  concrete  questions  arising  under  our 
dual  form  of  governments  illustrated  in  the  close  divisions  of 
the  Supreme  Court  in  such  cases,  and  they  must  be  deter- 
mined in  the  future,  as  they  have  been  in  the  past,  by  the  ju- 
dicial process  of  inclusion  and  exclusion. 

In  view  of  the  informal  character  of  many  of  the  proceed- 
before  the  Commission,  as  well  as  for  convenience  and  in 
the  interest  of  brevity,  the  citations  of  Commission  cases  have 
t >.-,  n  by  the  book  and  page  of  tin'  reports,  without  the  names 
«»f  the  parties.     A  table  in  the  appendix  however  gives  all  the 
3  decided   by  the  Commission,  with  the  names  of  the  par- 
D  alphabetical  order,  and  also  with  the  date  of  the  deci- 
sion, the  name  of  the  Commissioner  writing  the  opinion,  the 
volume  ami  page  of  thereport  as  well  as  the  page  of  the  cita- 
tion.    Reference  is  made  in  the  citation  of  Commission  cases 
both  to  th<'  Interstate  Commerce  Commission  Reports  (I.  C.  C. 
I:,     and  the'   Interstate  Commerce  Reports  (Int.   Com.  Rep.) 
Supreme  <  Jourt  of  tin-  United  States  is  cited  as  "Supreme 
Reference  is  made  to  the  Lawyers' annotated  edition 
.11  as  to  the  official  edition,  and  in  the  Circuit  Court  of 
A ps  s  to  the  Federal  Reporter  as  well  as  to  the  C.  C. 

A.  i . 

1  take  pleasure  in  acknowledging  my  great  indebtedness  to 

vrry  efficient  services  of   Mr.  John  11.  Overall,  Jr.,  of  the 

St  l.ouis  bar,  not  only  in  the  compilation  and  verification  of 

.  and  in  revision,  but  in  the  important  and  tedious  work 

of  preparing  the  index,    -and  also  the  eiiicient  assistance  of 

Mr.  Lee  SI.  Edgar, of  my  office,  in  the  tabulation  of  Court  and 

Frederick  N.  Judson. 
April, 


TABLE  OF  CONTENTS 


PART  I. 


CHAPTER  I. 

INTERSTATE  COMMERCE  UNDER   THE   FEDERAL  CONSTITU- 
TION. 

Page 

§  1.     The  commerce  clause  in  the  Constitution  2 

2.  Power  of  Congress  in  foreign  commerce  and  with  the  In- 

dian tribes  distinguished   5 

3.  The  preference  clause  in  the  Constitution  6 

4.  Federal  sovereignty  in  interstate  commerce   7 

5.  Gibbons  v.  Ogden  9 

6.  What  is  commerce  10 

7.  What  is  not  commerce  13 

S.     Insurance  is  not  commerce  14 

9.     What  are  the  subjects  of  commerce 15 

10.  Wild  game  and  fish  as  subjects  of  commerce 17 

11.  Natural  oil  and  gas  as  subjects  of  commerce  19 

12.  The  commerce  clause  and  the  admiralty  jurisdiction 20 

13.  Erie  Canal  subject  to  admiralty  jurisdiction    21 

14.  Jurisdiction  of  Federal  courts  in  admiralty  cases 22 

15.  State  corporations  in  interstate  commerce   22 

16.  The  original  package  in  interstate  commerce 24 

17.  The  Wilson  Bill  of  1890  27 

18.  A  State  cannot  tax  interstate  commerce  27 

19.  But  a  State  can  tax  the   property  employed   in  interstate 

commerce 28 

20.  State  power  of  taxation  of  corporations  engaged  in  inter- 

state commerce  summarized    29 

CHAPTER  II. 

THE  CONCURRENT  AND  EXCLUSIVE  POWERS. 

§  21.     The  concurrent  and  exclusive  powers  distinguished 31 

22.  The  Supreme  Court  on  the  three  classes  of  commerce  cases  32 

23.  The  concurrent  State  power   33 

24.  The  State  power  as  to  interstate  telegraph  companies 34 

25.  Concurrent  power  in  interstate  railroad  transportation....  35 

26.  State  Sunday  laws  and  interstate  traffic 36 


VU1  TABLE    OF    CONTENTS. 

Page 
§  27.     State  laws  as  to  qualifications  of  employees  and  safety  of 

the  public *6 

Siat.1    laws    concerning    separation    of    races    in    interstate 

traffic '" 

Limitation  of  Stat.-  power  in  stoppage  of  through  trains...  :J7 

30.  E  nlation  of  contractual  relations  of  interstate  rail- 

roads and  shippers  38 

31.  State  regulation  under  rules  of  common  law  in  State  courts  39 

concurrenl  jurisdiction  in  live  stock  inspection  laws..  40 
Effi          i    congressional    legislation  upon  concurrent  power 

Of   State    40 

::t      -  quarantine  laws   41 

Fn  edom  of  interstate  commerce  42 

Congressional  inaction  in  foreign. and  interstate  commerce 

distinguished  4;> 

37.     Attachment   of  foreign   railroad  cars    45 

[ngs  oi   the  State  courts  on  the  commerce  clause 46 

CHAPTEK  III. 

THE  FEDERAL  REGULATION  OF  INTERSTATE  COMMERCE. 

39'.     The  beginning  of  Federal  regulation  49 

40.  The  Railroad  Act  of  1866    50 

41.  State  regulation  of  railways  in  the  United  States 52 

42.  Governmental  regulation  of  railways  in  England  5:J 

The  common  law  in  interstate  commerce  54 

11.     Federal  and  State  Courts  in  the  Federal  regulation  of  in- 

tate  commerce 56 

46.     Genesis  of  tin-  Interstate  Commerce  Act 58 

of  the  Interstate  Commerce  Act 59 

J7.     Judi(  ial  const  rud  Ion  of  Hie  Act  to  Regulate  commerce 60 

Amendments  and  proposed  amendments  of  the  Act 62 

.on  of  bridges  and  ferries  over  navigable  rivers....  65 

Regulation  of  interstate  telegraph  companies  67 

51.     Interstate  telephone  companies  not    included  in  the  Act  of 

L866    69 

The  release  of  the  Federal  regulating  power  70 

Ri  filiation  by  the  delegation  of  power  71 

:,  l      Additional  act)    of  Congress  in  the  regulation  of  commerce  72 

The  Department  of  Commerce  and  Labor  71 

The  ii j, .  Federal  power  7''. 

Prohibition  and  regulation   78 

ulation  of  commerce  through  the  taxing  power 79 

•  r  of  granting  corporate  charters 80 

•  .rial    incorporation   as  a  means  in   the  exercise  of  the 

commerce   power   82 

Relation  of  l  o  Fed  ral  corporations  8o 


TABLE    OF    CONTENTS.  IX 

Page 
.§  62.     The  requirement  of  Federal  franchise  for  business  corpora- 
tions in  interstate  commerce  84 

63.  The   developing  construction  of  the  Federal   power  in  the 

regulation  of  commerce ' 86 

CHAPTER  IV. 

BUSINESS   AND   LABOR   COMBINATIONS    IN    INTERSTATE    COM- 
MERCE. 

64.  Demand  for  Federal  regulation  of  business  combinations..  88 

65.  The  Anti-Trust  Act  of  1890 89 

66.  Relation  of  Act  to  common  law  of  interstate  commerce...  90 

67.  Constitutionality   of  the   Act 91 

68.  Construction  of  the  Act  by  the  Supreme  Court 91 

69.  Reasonable  and  unreasonable  restraints  of  trade 93 

70.  Contracts  in  restraint  of  trade  under  the  Act 95 

71.  Contracts  restraining  sales  by  rebates  not  within  the  Act  96 

72.  Monopoly  within  the  meaning  of  the  Act 98 

73.  Monopoly  in  law  and  in  fact  distinguished 99 

74.  No  distinction  in  the  Act  between  necessaries  of  life  and 

other   articles 100 

75.  No  application  to  commerce  within  a  State 102 

76.  Application  to  State  "holding  companies"  103 

77.  The  labor  legislation  of  Congress 104 

78.  Regulation  of  interstate  commerce  in  relation  to  labor....   105 

79.  The  courts  on  labor  combinations  in  relation  to  interstate 

commerce 105 

80.  The  Federal  judicial  power  and  labor  combinations 106 

SI.     Sympathetic  strikes  and  boycotts  by  interstate  employees..   108 

82.  The  law  of  conspiracy  in  interstate  commerce 110 

83.  Distinguished  from  common  law  conspiracy 113 

84.  Interstate  commerce  in  relation  to  employees  therein 114 

85.  "Picketing"  and  "soliciting"  in  interstate  commerce 116 

86.  The  relation  of  interstate  railroad  employees  is  that  of  free 

contract    117 

87.  The  right  of  labor  organization  includes  the  right  of  repre- 

sentation      119 

88.  Injunction   in   interstate  commerce 120 

89.  Contempt  in  United  States  Courts 123 

90.  Mandatory  injunctions  in  interstate  commerce   127 

CHAPTER  V. 

THE  FEDERAL  CONTROL  OF  STATE  REGULATION. 

91.  State  regulation  of  railroads  under  State  Commissions....   128 

92.  The  power  of  regulation  independent  of  State  or  Federal 

incorporation    129 


TABLE    OF    CONTENTS. 

Page 
93.     The  limitations  of  the  State  authority  in  domestic  traffic.   130 

!»4.    Tito  adoption  oi  the  Fourteenth  Amendment 131 

;•;..     Federal  review  of  State  regulation  of  carriers 131 

lure  in  Federal  review  of  State  regulation 132 

Limitation  by  Federal  authority  of  the  State's  power  in  reg- 
ulating interstate  rates 133 

98,     \\  reasonableness  in  the  limitation  of  State  authority  135 

No  definite  standard  of  reasonableness  in  railroad  rates...   137 
d  of  the  carrier  against  discriminating  State  leg- 

islat  ion    138 

I'll.     Kxt.nt  of  the  State  power  of  regulation 138 

1..:.      ,                    \nti -Trust   Laws  and  the  Fourteenth  Amendment  140 
lassification  in  State  railroad  legislation 142 


PART  II. 


[NTERSTATE  COMMERCE  ACT. 

-    OTTON    1. 

104.  The  Act  to  regulate  commerce 146 

105.  All  of  interstate  commerce  not  included 146 

Laities  subject  to  the  Act 147 

107.  Express    companies 148 

108.  Under  common  control,  management  or  arrangement  for  a 

continuous  carriage 149 

nation  through  a  State 150 

110.  Interstate  electric  railroads 150 

111.  Receivers,  lessees  ami  purchasers  pendente  lite 151 

eommerce 151 

113.  "t  port  at  ion  of  the  carrier,  immaterial 152 

114.  The  intention  of  interstate  shipment  is  not  sufficient 152 

■  u mentalities  of  shipment  or  carriage 153 

1  16.  eartage  and  storage  and  demurrage  charges 153 

117.  and  perishable  property 155 

0    In   transit 156 

■  .nahle  and  just 158 

120.     Practical   difficulties   In   the  enforcement  of  reasonableness 

In    rates    159 

L21.     Standard  ol  ileness  under  state  statutes 1G0 

adard  of  reasonableness  tinder  the  Act 160 

has  no  power  to  fix    rates 161 

•  r  iti   the  courts  to  fix  rates L62 

leral  courts  on  reasonableness  in  railroad  rates....   L63 

n  of  railroads  as  a  basis  for  rates 164 

Through    rates   and    local    rates 165 


TABLE    OF    CONTENTS.  XI 

Page 

128.  The  Commission  on  through  and  local  rates 107 

129.  Responsibility  for  through  rates 169 

130.  Reasonableness  under  sections  1  and  3 170 

131.  Consideration  of  reasonableness  in  the  courts 170 

132.  Rulings  of  the  Commission  upon  the  reasonableness  of  rates  171 

133.  The  burden  of  proof  before  the  Commission 172 

134.  Presumption  of  reasonableness  from  established  rates....   172 

135.  The    Commission    on    cost    of    service    and    needs    of    the 

shipper    173 

136.  The  Commission  on  the  character  of  the  traffic 171 

137.  The  Commission  on  distance  as  a  factor  in  rates 174 

138.  The  Commission  on  comparison  of  rates 175 

139.  Relation  to  State  local  rates 176 

140.  Reasonableness    and    proportion 176 

141.  The  Commission  on  rate  wars  and  reasonableness  of  rates.  177 

142.  Illustrative  cases  upon  specific  rates 178 

Section  2. 

143.  Unjust  discrimination  defined  and  forbidden 180 

144.  Origin  of  the  section 181 

145.  Purpose  of  the  section 182 

146.  Effectiveness  of  the  section.    Act  of  Feb.  19,  1903 183 

147.  Common  law  as  to  discriminations 184 

148.  Just  and  unjust  discriminations  at  common  law 186 

149.  Difference  in  charge  based  upon  difference  in  service 189 

150.  Circumstances  and  conditions  of  through  traffic  and  local 

traffic  are  dissimilar 190 

151.  Competition  of  carriers  does  not  make  circumstances  dis- 

similar under  section  2  190 

152.  The  Party  Rate  case 192 

153.  Wholesale  and  retail  rates  in  freight  traffic 192 

154.  Wholesale    rates    in    freight    and    passenger    traffic    distin- 

guished        194 

155.  Discrimination  not  unjust  when  based  on  special  service..   195 

156.  Carload  and  less  than  carload  rates 195 

157.  Discrimination  in  application  of  carload  rates 197 

158.  Cargo    rates    discriminative 198 

159.  Different  forms  of  discrimination 19S 

160.  Discrimination  through  interest  in  connecting  company.  . . .   200 

161.  Discrimination  by  carrier  in  favor  of  itself  as  a  shipper. . .   200 

162.  Discrimination  in  the  storage  of  goods,  etc 202 

163.  Stoppage  in  transit  privileges 203 

164.  Unlawful  discrimination  through  abuse  of  stoppage  in  tran- 

sit privileges 204 

165.  Unjust  discrimination  in  passenger  service 205 

166.  Giving  passes  to  shippers  prohibited 206 

167.  Application   of  the  section 206 


Xii  TABLE    01    CONTENTS. 

Page 

m  of  overcharge  20S 

torcement  of  the  section  208 

menl   by  injuncl  ion 209 

171  if  rebates  upon  contracts  of  affreightment 210 

171.;.  Discrimination  in  allowance  to  private  transfer  companies.   210 

Si  0TION    3. 

172.     Undue  or  unreasonable  preference  or  advantage  forbidden  212 

Origin  of  the  section 212 

174.      Relation    to  sections    1    and   2 214 

ities  enforced   by  competition  are  not 

undue :  •  ■  •  215 

176.  Application  of  the  competition  rule 216 

177.  Whether  competition  is  controlling  is  a  question  of  fact...  216 

178.  Discrimination  between  domestic  and  foreign  traffic  in  im- 

port and  export  rates  not  undue  preference 217 

17'.|.     Application  of  the  import  rule  to  intermediate  points  on  the 

line    219 

180.     Competition  created  by  carriers 220 

The  basing  poinl   system  not  illegal 221 

Grouping   of   rates 222 

Qualifies            in   the  application  of  the  competition  rule..  221 
184.     Recognition  of  natural  advantages  of  localities  not  an  undue 

erence 226 

on  opposite  banks  of  river 227 

186.     Differentials  between  competitive  cities  228 

Form  of  undue  preference  immaterial  230 

limitation  in  time  of  closing  freight  stations.  .  .  2:11 

•      i    e  in  car  service 231 

190.  Discrimination  by  carrier  in  its  own  favor 234 

191.  Oi  rence  in  private  cars 234 

i    of  excursion  or  sleeping  cars  of  one  owner.  .   236 
■  urs  does  nol    carry   right  of  exclusive  use  by 

er    236 

..    transit    privileges 236 

S   ite    Railroad    Commission   with   propor- 
tional tariff  rates -:''" 

connections 238 

Undue  preference  In  denying  shippers  the  choice  of  route..  240 

Undue  preference  In  arbitrary  division  of  territory 241 

:;.!  undue  preferences  242 

D  on   in  kinds  of  traffic 243 

t    involve  injury   244 

ilation  of  carload  weights  not  preferential  245 

D  grain  and  grain  products 246 

qoI  concluded  by  ruling  of  State  Commis- 
217 


TABLE    OF    CONTENTS.  XI 11 

Paxe 
§  205.     Discrimination  in  mode  of  shipment 247 

206.  Classification 248 

207.  Consultation  of  carriers  in  classification  not  illegal  combina- 

tion      249 

208.  Undue  preference  in  classification 249 

209.  Power  of  Commission  in  correcting  classification 251 

210.  Reasonable  regulations  in  classification 252 

211.  Facilities  for  interchange   of  traffic 253 

212.  Exacting  prepayment  not  undue  discrimination    254 

213.  State  control  of  interchange  of  interstate  traffic 254 

214.  State  and  municipal  control   of  terminals 255 

215.  The  charging  of  local  rates  an  undue  discrimination 256 

216.  The  rights  of  exclusive  through  routing 257 

217.  Contract  rights  of  trackage 258 

218.  Rights  of  connecting  carriers  as  to  milling  in  transit  privi- 

leges       259 

Section  4. 

219.  Long  and  short  haul  provisions 2C0 

220.  History  of  the  section 260 

221.  "Under  similar  circumstances  and  conditions" 261 

222.  Competition  under  section  4  and  under  section  2 262 

223.  "Over  the  same  line" 263 

224.  The  proviso  of  the  section  264 

225.  The   burden   of  proof 264 

Section  5. 

226.  Pooling  of  freights  and  division  of  earning  forbidden 266 

227.  Construction   of  section 266 

228.  Controlling  through  routing  to  connections  by  initial  car- 

rier      267 

229.  Agreements  not  within  the  prohibition 268 

230.  The  relation  of  the  section  to  the  Anti-Trust  Law  of  1890.  .  269 

231.  Pooling  as  a  defense  to  action  of  the  carrier 270 

Section  6. 

232.  Printing    and    posting    of    schedules    of    rates,    fares    and 

charges,  etc 271 

233.  Amendments    27:] 

234.  Effect    of    publication 274 

235.  Enforcibility  of  unpublished  rate  against  the  carrier 275 

236.  What  is  included  in  schedules 277 

237.  What  is  sufficient  publication  and  filing 278 

238.  Joint  tariffs  and  through  rates 279 

239.  Published  joint  rates  must  be  duly  authorized 280 

240.  Application  to  export  and  import  rates 281 


xiv  table  of  contents. 

Section   7. 

Page- 

§  241.     Continuous  carriage  of  freights  from  place  of  shipment  to 

place  of  desl  inal  ion 283 

lMl'.     Judicial   application  of  section 283 

Section  S. 

Liability  of  common  carriers  for  damages 284 

Action  based  on  the  statute 284 

1  Mai  mi  ft"  must  show  injury 285 

246.     Limitation  of  actions 285 

L'tT.     Assignability   of  claims 286 

248.     The  jurisdiction   of  Federal   courts 286 

Jurisdiction  of  the  Federal  courts  in  equity  under  the  Act.  287 

Jurisdiction  in  equity  for  protection  of  interstate  commerce  290 

Section  9. 

251.     Persons  claiming  to  be  damaged  may  elect  whether  to  com- 
plain to  the  Commission  or  bring  suit  in  a  United  States 

court    292 

Judicial  application  of  section 292. 

Section  10. 

Penalties  for  violations  of  Act  by  carriers 294 

254.     Amendments   of   1889 295 

Summary  of  amendments  of  1903 296 

256.  Illegal  combinations  tinder  section  10 296 

257.  The  incidental  interference  with  commerce  by  a  peaceable 

strike  not  a  violation  of  the  section 297 

Construction  of  the  statute 298 

Removal  of  indicted  persons  to  other  districts  for  trial 299 

ion  of  criminal  prosecution  under  the  Act » . .  300 

Section  11. 
ate  Commerce  Commission — How  appointed 301 

Sect  ion  12. 

261.     Power  and  duty  of  Commission  to  inquire  into  business  of 

carriers  and  keep  Itself  informed  in  regard  thereto 303 

Amendments    305 

impelling  of  self-incriminating  testimony 306 

immunity  of  corporations  from  self-incrimination  306 

Probative  effed  of  enforced  self-incriminating  testimony..  309 

immunity  Is  limited  to  the  subject  of  testimony 309 

.'•r  of  the  court  to  enforce  testimony  before  the  Commis- 

ed    310' 


TABLE    OF    CONTENTS.  XVT 

Page 

208.     Relevancy  of  testimony  before  the  Commission 310 

2G9.     General  powers  of  the  Commission 311 

Section  13. 

270.  Complaints  to  Commission — How  and  by  whom  made — How 

served  upon  carriers 314 

271.  Procedure   before   Commission — Parties 314 

272.  Pleadings  and  proofs 315 

273.  Burden  of  proof 316 

274.  Production  of  books  and  papers 317 

275.  The  rulings  of  the  Commission  as  precedents 318 

Section  14. 

276.  Commission  must  make  report  of  investigation 319 

277.  The  report  of  findings  of  fact  made  prima  facie  evidence.  .  319 

278.  The  Commission  as  a  general  referee 320 

279.  Claims  for  reparation  before  the  Commission 321 

280.  Reports  of  decisions 322 

Section  15. 

281.  Notice  to  common  carrier  to  cease  from  violation  of  Act.  . .  323 

282.  Notice  to  the  carrier  is  jurisdictional 323 

Section  16. 

283.  Petition  to  United  States  courts  in  cases  of  disobedience  to 

order    of    Commission 324 

284.  The  saving  of  the  right  of  trial  by  jury 326 

285.  Limitations  of  actions  for  reparation 327 

286.  Jurisdiction  of  the  Circuit  Court 328 

287.  Proper  and  necessary  parties  to  procedure 328 

288.  Parties   defendant 329 

289.  Prima  facie  effect  of  the  report 329 

290.  The  revisory  power  of  the  court 330 

291.  Injunction    331 

292.  Right  of  appeal 331 

293.  Supersedeas  on  appeal 331 

294.  The  provision  as   to   supersedeas  applies   only  to  appeals 

from  Circuit  Courts   332 

Section  17. 

295.  Interstate  Commerce  Commission — Form  of  procedure....  333 

Section  18. 

296.  Salaries  of  Commissioners,  Secretary,  etc 334 

297.  Expenses  of  the  Commission 334 


XVI  TABLE    OF    CONTENTS. 

Section   L9. 

Page 

§  298.     Principal  office  of  the  Commission,  etc 335 

299.     Practice  of  the  Commission  in  hearings 335 

Section  20. 

Carriers  subject  to  the  Act  must  render  full  annual  reports 
to  Commission   33G 

301.  Railroads  which  are  not  subject  to  section  20  of  the  Act...   336 

Section  21. 

302.  Annual  reports  of  the  Commission  to  Congress  on  or  before 

December  1st  each  year 338 

Section  22. 

303.  Persons   and  property  that  may  be  carried  free  or  at  re- 

duced  rates,   etc 339 

304.  Amendments  to  section 340 

305.  The  section  illustrative  and  not  exclusive 340 

306.  The  section  permissive  only 341 

307.  Withdrawal  of  commutation  tickets 341 

Section  23. 

308.  Jurisdiction  of  United  States  Courts  to  issue  writs 343 

309.  Application  of  section  to  car  shortage 343 

INTERSTATE  COMMERCE  ACT  AMENDMENT. 

Amendatory  Act  of  February  19,  1903   (Elkins  Act). 

310.  Section   1.  Carrier  corporation  as  well  as  officer  or  agent 

liable  to  conviction  for  misdemeanor 345 

311.  Section  2.  Parties  interested  subject  to  orders  or  decrees..    346 

312.  Section  3.  Proceedings  to  enjoin  departure  from  published 

rates 347 

313.  Section  4.  Conflicting  laws  repealed 348 

THE  ANTI-TRUST  ACT  OF  1890. 
Section  1. 

314.  Section   1  of  the  Act 349 

315.  Constitutionality  and  scope  of  the  Act 349 

316.  Interstate  transportation  is  subject  to  the  Act 350 

317.  Unlawful  combinations  In  commerce  other  than  transporta- 

tion    The  A'Mysion   Pipe  Trust  case 351 

318.  The  California  Tile  Trust  case 352 


TABLE    OF    CONTENTS.  XV11 

Page 

§  319.     The  Tennessee,  California  and  Ohio  Coal  eases 353 

320.  The  Chicago  Meat  Trust  case 353 

321.  The  Washington  Shingle  Trust  case 354 

322.  Incidental  restraint  of  trade  not  violative  of  the  Act 354 

323.  The  Kansas  City  Live  Stock  Exchange  cases 355 

324.  Agreements  not  within  the  Act 35G 

325.  Certain  agreements  not  to  enter  into  competition  not  within 

the  Act   357 

326.  Labor    combinations    .  .  *. 357 

Section  2. 

327.  Section  2  of  the  Act 35!) 

328.  Criminal  procedure  under  the  Act 359 

Section  3. 

329.  Section  3  of  the  Act 361 

330.  Territories  and  District  of  Columbia  included 361 

Section  4. 

331.  Section  4  of  the  Act 362 

332.  Procedure  in  equity  under  the  Act 362 

333.  Right  to  statutory  injunction  limited  to  the  government..  363 

334.  A  State  cannot  enjoin  under  the  Act 363 

Section  5. 

335.  Section  5  of  the  Act 365 

Section  6. 

336.  Section  6  of  the  Act 366 

337.  Enforcement  of  seizure  of  goods  under  section  6 266 

Section  7.       .    ■ 

338.  Section  7  of  the  Act 367 

339.  Private  actions  under  section  7 367 

340.  Plaintiff  must   show    injury 368 

341.  A  State  is  not  a  "person  or  corporation"  under  section  7..  369 

342.  Pleadings   under  section   7 '.  369 

343.  Measure  of  damages  under  section  7 369 

344.  Limitation   in   private  actions 370 

345.  The  Act  as  a  defense  in  suits  by  alleged  illegal  combina- 

tions       370 

346.  The  Act  as  a  defense  in  patent  litigation 371 

347.  Self-incriminating  testimony    .' 371 


XV1U  TABLE    OF    CONTENTS. 

Section  S. 

Page 

Section  8  of  the  Act 373 

THE  EXPEDITION  ACT. 

Expedition  of  cases 374 

Judicial  application  of  Act 375 

CHE    DEPARTMENT    OF    COMMERCE    AND   LABOR. 

351.    The  Departmenl  of  Commerce  and  Labor 376 

3     •  ion  6  of  i  hat   Act 376 

The  remaining  sections  of  that  Act 378 

TIIK  SAFETY   ACT  OF  1893,  AMENDED  1896. 

Section   1. 

354.     Son  ion    1   of   the   Act 379 

Railroads  subject    to  the   Ad 379 

common-law   duty  of  the  carrier  in  relation  to  safety 

appliances    360 

7      Petition  and  procedure  under  the  Act  381 

Federal  question  in  suits  under  the  Act 381 

Si  ctton  2. 

Section  2  of  the  Act 3S2 

360.     Coupler  equipment  under  section  2   382 

ouplers  of  different  makes 383 

The  meaning  of  "car"  in  section  2 383 

ars  are  in  interstate  commerce 384 

Secj  [ON   •'!. 

Section  3  of  the  Act 385 

Section  4. 

•ion   1  of  the  Act    3SG 

of  defective  ears   forbidden 38G 

[TON    •".. 

■  ion   5   of  t  he   act 387 

8    •  i  [ON    *'». 

388 

be  Act  by  prosecution  388 


table  of  contents.  xix 

Section  7. 

Page 
§  370.     Section  7  of  the  Act 389 

371.  Discretion  of  the  Commission  in  delaying  enforcement  of 

the    Act    389 

Section  S. 

372.  Section  8  of  the  Act  390 

373.  Contributory  negligence  under  the  Act 390 

AMENDMENT  OF  1903  TO  SAFETY  ACT. 

374.  Amendment   of   1903 392 

THE  ACCIDENT  LAW  OF  MARCH  3,  1901. 

375.  Monthly  reports  of  railway  accidents 394 

FEDERAL  LABOR  STATUTES. 

376.  The  National  Trade  Union   Incorporation  Act 395 

NATIONAL  ARBITRATION  ACT. 

377.  Act  of  June  1,  1898,  3  Compiled  Statutes,  3205 396 

PROCEDURE  BEFORE  INTERSTATE  COMMERCE 
COMMISSION. 

378.  Rules  of  practice  before  the  Commission  in  cases  and  pro- 

ceedings under  the  Act  to  regulate  commerce 402 

Forms  in  Proceedings  Before  the  Commission 411 

Table  of  Court  Cases 415 

Table  of  Commission  Rulings. . . . . 428 

Table  of  Commission  on  Reasonableness  of  Rates  and  Disposi- 
tion of  Same 464 


THE  LAW  OF 

INTERSTATE    COMMERCE 


PART  I. 


CHAPTER  I. 

INTERSTATE  COMMERCE  UNDER  THE  FEDERAL  CONSTITUTION. 

CHAPTER  II. 

THE  CONCURRENT  AND  EXCLUSIVE   POWERS  IN  INTERSTATE  COMMERCE. 

CHAPTER   III. 
THE   FEDERAL   LEGISLATIVE  REGULATION   OF  INTERSTATE  COMMERCE. 

CHAPTER  IV. 
BUSINESS   AND  LABOR  COMBINATIONS   IN   INTERSTATE  COMMERCE. 

CHAPTER  V. 
THE   FEDERAL  CONTROL  OF  STATE   REGULATION   OF  COMMERCE. 


CHAPTEE  I. 

INTERSTATE  COMMERCE  UNDER  THE  FEDERAL  CONSTITUTION. 

§  1.     The  commerce  clause  in  the  constitution 1 

2.  Power  of  congress  in   foreign  commerce  and  with  the   Indian 

tribes  distinguished 5 

3.  The  Preference  clause  in  the  constitution 0 

4.  Federal  sovereignity  in  interstate  commerce 7 

5.  Gibbons  v.  Ogden ' 9 

6.  What  is  commerce 10 

7.  What  is  not  commerce 13 

8.  Insurance  is  not  commerce , 14 

9.  \V hat  are  the  subjects  of  commerce 15 

10.  Wild  game  and  fish  as  subjects  of  commerce 17 

11.  Natural  oil  and  gas  as  subjects  of  commerce 19 

12.  The  commerce  clause  and  the  admiralty  jurisdiction 20 

13.  Erie  Canal  subject  to  admiralty  jurisdiction    21 

14.  Jurisdiction  of  federal  courts  in  admiralty  cases 22 

15.  State  corporations  in  interstate  commerce.  .    22 

16.  When  transit  ends;  the  original  package  in  interstate  commerce  24 

17.  The  Wilson  Bill  of  1890 27 

18.  A  state  cannot  tax  interstate  commerce   27 

19.  But  a  state  can  tax  the  property  employed  in  interstate  commerce  28 

20.  State  power  of  taxation  of  corporations  engaged  in  interstate 

commerce  summarized ....  29 

1 


2         INTERSTATE    COMMERCE    UNDER   FEDERAL   CONSTITUTION.       [§  1. 

11  The  congress  shall  have  power  ...  to  regulate  com- 
merce with  foreign  nations,  among  the  several  states,  and  with 
the  Indian  tribes."  Constitution  of  the  United  States,  art.  I, 
sec.  \  par.  3. 

"  The  congress  shall  have  power  to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  effect  the  foregoing 
powers,  and  all  other  powers  vested  by  this  constitution  in  the 
government  of  the  United  States,  or  in  any  department,  or  any 
officer  thereof.*'     Art.  I,  sec.  S,  par.  IS. 

••  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
stat.-.  No  preference  shall  be  given  by  any  regulation  of  com- 
merce  or  revenue  to  the  ports  of  one  state  over  those  of  an- 
other; nor  shall  vessels  bound  to  or  from  one  state  be  obliged 
to  enter,  clear,  or  pay  duties  in  another."    Art.  I,  sec.  9,  par.  5. 

"The  citizens  of  each  state  shall  be  entitled  to  all  the  priv- 
ileges and  immunities  of  the  citizens  of  the  several  states." 
Ait.  IV,  sec.  2. 

"This  constitution  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made  or 
which  shall  be  made  under  the  authority  of  the  United  States 
shall  be  the  supreme  law  of  the  land;  and  the  judges  in  every 
state  shall  be  bound  thereby,  anything  in  the  constitution  or 
laws  of  any  state  to  the  contrary  notwithstanding."  Art.  VI, 
par.  2. 

"  The  powers  not  delegated  to  the  United  States  by  the  con- 
stitution, nor  prohibited  by  it  to  the  states,  are  reserved  to  the 
states  respectively,  or  to"  the  people."  Amendment  X  (de- 
clared ratified  January  8,  179S). 

"All  persons  born  or  naturalized  in  the  United  States  and 
subject  to  the  jurisdiction  thereof  are  citizens  of  the  United 
States  and  of  the  state  wherein  they  reside.  No  state  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States,  nor  shall  any  state 
deprive  any  person  of  life,  liberty  or  property  without  due 
process  of  law.  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws."  Article  XIV,  Section  1 
(declared  ratified  July  28,  1S6S). 

§  1.  The  commerce  clause  in  the  constitution.— The  com- 
merce clause  in  the  federal  constitution  illustrates  more  point- 
edly than  any  other  the  circumstances  which  forced  the  adop- 
tion of  the  constitution  and  the  formation  of  the  government 


§  1.]       INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.  3 

of  the  Union,  and  its  judicial  history  is  the  clearest  example  of 
the  adaptation  of  a  written  constitution  by  construction  to  con- 
ditions and  emergencies  never  contemplated  by  its  framers. 
It  was  the  .necessity  for  national  control  over  foreign  com- 
merce which  was  the  immediate  occasion  for  calling  the  con- 
vention of  17ST,  as  the  defect  of  the  articles  of  confedera- 
tion in  failing  to  provide  for  the  control  of  this  commerce  was 
universally  recognized. 

Under  the  articles  of  confederation  adopted  during  the 
revolutionary  war  congress  had  power  to  regulate  trade  with 
the  Indians,  but  the  control  of  foreign  and  interstate  com- 
merce remained  with  the  states.  The  compact  between  Vir- 
ginia and  Maryland  relative  to  the  navigation  of  the  Potomac 
river  and  the  Chesapeake  Bay,  and  the  report  of  the  commis- 
sioners thereon  led  the  Yirginia  legislature  to  call  a  confer- 
ence at  Annapolis  in  17SG  to  take  into  consideration  the  "  trade , 
of  the  United  States,  to  examine  the  relative  situation  in  the 
trade  of  the  states,  to  consider  how  far  a  uniform  system  in 
their  commercial  relations  may  be  necessary  to  the  common 
interests  and  their  permanent  harmony."  From  the  Annapolis 
conference  came  the  call  for  the  Philadelphia  convention  of 
17S7,  which  framed  the  constitution. 

Commerce  among  the  states  however  was  in  17S7  very 
simple,  and  other  than  that  carried  on  in  teams  and  wagons 
was  carried  on  by  navigation.  There  was  comparatively  little 
discussion  in  the  debates  of  the  convention  or  in  the  Federalist 
concerning  the  federal  control  over  interstate  commerce,  and 
no  consideration  seems  to  have  been  given  to  the  question  of 
the  effect  of  this  grant  of  the  federal  power  upon  the  police  or 
taxing  power  of  the  states.  It  was  regarded  as  essentially 
supplemental  to  the  control  over  foreign  commerce,  and  was 
granted  so  as  to  make  the  control  over  foreign  commerce  effect- 
ive. It  was  said  by  Mr.  Madison,1  that  without  this  supple- 
mental provision  the  great  and  essential  power  of  regulating 
foreign  commerce  would  have  been  incomplete  and  ineffectual, 

1  Federalist  No.   4?.     It   was  sug-  or  law  regulating  commerce  should 

gested  in  the  convention  though  not  be  passed   without  the   consent  of 

adopted,  and  also  in  some  of  the  two-thirds  of  the  members  present 

state  conventions  as  a  condition  of  in  both  houses. 
ratification,  that  no  navigation  law 


4  INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.       [§   1. 

ami  that  with  state  control  of  interstate  commerce,  ways 
would  be  found  to  load  the  articles  of  import  and  export  dur- 
ing the  passage  through  their  jurisdictions  with  duties,  which 
would  fall  on  the  makers  of  the  latter  and  the  consumers  of 
the  former. 

The  far-reaching  importance  of  this  federal  control  over 
commerce  among  the  states  was  not  and  could  not  be  fore- 
seen. It  only  came  to  be  realized  in  the  course  of  years,  as  the 
commercial  development  of  the  country  demanded  a  judicial 
construction  of  the  federal  power  in  harmony  with  the  require- 
ments of  such  commerce. l  The  basis  of  this  construction  for 
all  time  was  made  by  the  far-sighted  and  masterful  reasoning 
in  the  broad  and  comprehensive  opinions  of  Chief  Justice 
Marshall.2 

The  Supreme  Court  in  1805  in  affirming  the  supremacy  of 
the  federal  power  in  interstate  commerce,  said:  3 

••  (  institutional  provisions  do  not  change,  but  their  opera- 
tion extends  to  new  matters,  as  the  modes  of  business  and  the 
habits  of  life  of  the  people  vary  with  each  succeeding  genera- 
tion. The  law  of  the  common  carrier  is  the  same  to-day  as 
when  transportation  on  land  was  by  coach  and  wagon,  and  on 
water  by  canal  boat  and  sailing  vessel,  yet  in  its  actual  opera- 
tion it  touches  and  regulates  transportation  by  modes  then  un- 
known, the  railroad  trains  and  steamships.  Just  so  it  is  with 
the  grant  to  the  national  government  of  power  over  interstate 
commerce.  The  constitution  has  not  changed.  The  power  is 
the  same.  But  it  operates  to-day  upon  modes  of  interstate 
commerce,  unknown  to  the  fathers,  and  it  will  operate  with 
equal  force  upon  any  new  modes  of  such  commerce  which  the 
future  may  develop." 

'Only  live  cases  involving  the  con-  that  in  order  to  give  full  and  fair 

ion  i>t  the  clause  were  decided  effect  to  the  different  clauses  of  the 

by  the  supreme  court  prior  to  1 S  -1 0.  constitution,  the  court  has  been  con- 

2  Justice  Bradley  in  the  opinion  of  strained  to  refer  to  the  fundamental 

nt  in  Leloup  v.  Port  of  Mobile,  principles  stated  and  illustrated  with 

127  U.  S.  640, 32  L.  Ed.  311, in  1887,  said  so    much    clearness    and    force    by 

thai    i  greai   number  and  variety  of  Chief  Justice   Marshall    and    other 

involving  the  commercial  pow-  members    of    the  court  in    former 

er  of  congress  have  been  brought  to  times,  and  to  modify  to  some  degree 

the  attention  of  this  court  during  the  certain   dicta   and   decisions  which 

past    fifteen   years,  which  have  fre-  have  occasionally  been  made  in  the 

quently  made  it    necessary  to  re-ex-  intervening  period. 

amine  the  whole  subject  with  care        "In  re  Debs,   158  U.  S.  1.  c.  p.  591, 

and  the  result  has  sometimes  been  39  L.  Ed.  1092. 


§  2.]       INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.  5 

§  2.  Power  of  congress  in  foreign  commerce  and  with 
the  Indian  tribes  distinguished. — In  the  commerce  clause, 
congress  is  empowered  to  regulate  commerce  with  foreign  na- 
tions among  the  several  states  and  with  the  Indian  tribes.  Al- 
though the  three  classes  of  commerce  are  thus  grouped  in  the 
same  clause  and  in  the  same  terms,  there  is  a  distinction  which 
has  been  frequently  discussed  between  interstate  commerce  on 
the  one  hand,  and  that  with  foreign  nations  and  with  the  In- 
dian tribes  on  the  other,  and  this  .distinction  is  important  not 
only  in  the  construction  of  the  legislation  heretofore  enacted 
by  congress,  but  in  determining  the  power  of  congress  in  what 
may  be  termed  its  unexercised  power  over  interstate  commerce. 

In  its  control  over  foreign  commerce,  congress  exercises  the 
power  of  an  independent  sovereign  dealing  with  other  inde- 
pendent sovereign  powers,  and  there  is  no  implied  or  reserved 
power  in  the  states  in  relation  to  such  commerce.  Congress 
may  exercise  the  sovereign  power  of  placing  an  embargo  upon 
foreign  commerce1  or  it  may  exclude  aliens.  Commerce  with 
the  Indian  tribes  is  also  distinct  from  that  between  the  states, 
in  that  congress  in  such  regulation  exercises  the  power  of  a 
sovereign  over  a  dependent  people  or  tribal  communities  sub- 
ject to  the  paramount  authority  of  the  United  States.-  The 
power  of  controlling  commercial  relations  with  foreign  nations 
and  with  the  Indian  tribes  is  therefore  an  essential  sovereign 
power,  which  might  have  been  inferred  as  an  attribute  of  an 
independent  sovereign  nation  created  by  the  constitution  with- 
out express  grant  of  such  power  in  the  constitution. 

The  power  to  regulate  commerce  among  the  states  was 
expressly  given  to  congress  in  order  to  secure  equality  and 
freedom  in  commercial  intercourse  between  the  states  as  sov- 
ereign political  communities,  subject  only  to  the  paramount 
authority  of  the  United  States  in  national  concerns.  Although 
the  three  classes  of  commerce  are  thus  included  in  the  same 
clause  and  in  the  same  terms  in  the  enumeration  of  powers, 

1  1  Story  on  the  Constitution,  sec.  Ed.  483;  United   States  v.  Kagama, 

289;  United  States  v.  Brigantine  Wil-  118  U.S.  375.30  L.   Ed.    228   (1886): 

liam,  Dist.    of  Mass.,    2   HalTs   Am.  United  States  v.  Forty-three  Gallons 

Law.  J.  255.  of  Whiskey,  93  U.  S.  188,  23  L.  Ed. 

2 Cherokee  Nation  v.  Georgia,  5  846(1876):  Cherokee  Nation  v.  Kan- 
Peters  1  (1831),  8  L.  Ed.  25;  Worcester  sas  Ry.  Co.,  135  U.  S.  641  (1890)  34  L. 
v.  Georgia,  6  Peters  515  (1832)  8   L.  Ed.  295. 


6  INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.  ^  6. 

they  are  clearly  distinguished  in  their  historic  setting  and  con- 
stitutional import,  and  the  laws,  which  are  necessary  and  proper 
in  regulating  commercial  intercourse  with  foreign  nations  and 
with  the  Indian  tribes,  may  not  be  necessary  and  proper  in 
reffulatinc:   such  commercial  intercourse  between  the  states.1 

;<  :{.  The  preference  clause  in  the  constitution.— The  so- 
called  preferential  clause  of  the  constitution  (article  I,  section 
9,  paragraph  5,  supra)  illustrates  this  differentiation  of  the 
federal  control  of  commerce  among  the  states  from  that  over 
foreign  commerce  and  with  the  Indian  tribes. 

As  already  observed,  at  the  time  of  the  adoption  of  the  con- 
stitution, commerce  among  the  states,  all  of  which  were  con- 
nected by  sea  and  navigable  waters,  was  conducted  wholly  by 
navigation  except  what  was  conducted  by  stage  or  wagon.  The 
prohibition  therefore  of  any  preference  of  the  ports  of  one 
state  over  those  of  another,  or  of  any  duties  in  interstate  traf- 
fic, had  an  importance  at  that  time  as  a  restraint  upon  the 
powers  of  the  general  government  which  can  hardly  be  appre- 
ciated at  the  present  time.  The  section  is  devoted  exclusively 
to  denning  the  powers  conferred  upon  congress,  and  is  a  di- 
stinct limitation  of  the  powers  of  congress  in  the  regulation 
of  commerce  between  the  states.2 

The  prohibition  of  a  tax  or  duty  upon  articles  of  export  from 
any  state  was  assumed  in  Almy  v.  California3  to  apply  to  ex- 
ports from  one  state  to  another.  It  has  since  been  held  that 
this  prohibition  has  no  application  to  interstate  traffic,  but  ap- 
plies to  foreign  exports  only.4 

This  clause  was  discussed  in  one  of  the  Insular  cases,5  where 
a  bare  majority  of  the  court  held  that  a  tariff  upon  merchan- 
dise o-oino-  into  Porto  Rico  from  the  United  States  was  not  a 
duty  upon  an  article  exported  from  the  United  States,  as  it 
was  not  exported  to  a  foreign  country. 

M  r.  Justice  Brown  in  delivering  the  opinion  of  the  court  said 
it  was  not  intended  to  intimate  that  congress  could  lay  a  tariff 
upon  merchandise  carried  from  one  state  to  the  other,  while 

J  See  opinion  of  Justice  McLean  in        3  24  Howard  169  (1860)  16   L.    Ed. 
Proves   v.  Slaughter,  15   Peters  1.  c.     644. 
505,  10  L  Ed.  800-821    1841).  4  Woodruff  v.  Parham,  8  Wallace 

-  Morgan   v.    Louisiana,    118   U.  S.     123  (1868)  19  L.  Ed.  382. 
4">  (1886 I  30  L.  Ed  ^:JT.     See  infra,        5  Dooley  v.  United  States,  183  U.  S. 

151  (1901)  46  L.  Ed.  128. 


§  4.]       INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.  7 

in  the  dissenting  opinion1  it  was  insisted  that  this  clause  was 
intended  to  prevent  the  exercise  through  the  taxing  power  of 
congress  or  its  power  to  regulate  commerce  so  as  to  discrim- 
inate between  one  part  of  the  country  and  another,  and  the 
power  to  regulate  interstate  commerce  was  granted  in  order 
that  trade  between  the  states  might  be  left  free  from  discrim- 
inating legislation,  and  not  to  impart  the  power  of  creating 
antagonistic  commercial  relations  between  them. 

§4.  Federal  sovereignty  in  interstate  commerce. —  The 
federal  authority  in  interstate  commerce  is  enforced  not  only 
by  the  power  of  regulation  granted  to  congress  by  the  consti- 
tution, but  also  by  the  exercise  of  other  expressly  enumerated 
powers  of  congress,  more  or  less  directly  relating  to  interstate 
commercial  intercourse.  Thus  the  power  to  establish  postof- 
fices  and  post  roads,  to  coin  money,  to  establish  uniform  systems 
of  bankruptcy,  to  grant  patents  for  discoveries,  and  most  import- 
ant of  all  the  taxing  power,  are  closely  associated  with  com- 
mercial relations  and  activities.  There  is  also  what  has  been 
termed  the  "co-efficient  power,"  the  power  to  make  all  laws 
necessary  and  proper  to  carry  into  effect  the  foregoing  powers, 
and  all  other  powers  vested  by  the  constitution,  in  the  gov- 
ernment of  the  United  States  or  in  any  department  or  of- 
ficer thereof. 

The  broad  and  comprehensive  construction  given  to  this  co- 
efficient power,  of  selecting  measures  for  carrying  into  execu- 
tion the  constitutional  powers  of  the  government  has  made 
academic  rather  than  practical  the  long  debated  distinction  be- 
tween the  express  and  implied  powers  of  congress.2  The  words 
"necessary  and  proper"  are  not  limited  to  such  measures  as 
are  absolutely  and  indispensably  necessary,  without  which  the 
powers  granted  must  fail  of  execution,  but  they  include  all 
proper  means  which  are  conducive  or  adapted  to  the  end  to  be 
accomplished,  and  which  in  the  judgment  of  congress  will  most 
advantageously  effect  such  end.3 

The  federal  authority  in  interstate  commerce,  as  in  other 
matters,  does  not  rest  on  a  mere  aggregation  of  the  enumerated 

1  Justices  Fuller,  Brewer,  Harlan  3  Legal  Tender  Cases,  1 10  U.  S.  421 
and  Peckham.  (1884),  28  L.  Ed.  204. 

2  McCulloch  v.  Maryland,  4  Wheat. 
316,  438,  4  L,  Ed.  579. 


8  INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.       [§  4. 

powers.  Although  the  government  of  the  United  States  is  one 
of  enumerated  powers,  and  under  the  tenth  amendment  the 
powers  not  delegated  to  the  United  States  by  the  constitution, 
nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states  re- 
spectively or  to  the  people,  it  is  also  true  that  there  is  a 
national  sovereignty  —  a  national  Federal  State — within  the 
scope  of  the  enumerated  powers,  and  the  constitution 
and  laws  of  the  United  States  are  the  supreme  law  of  the 
land.  Upon  this  broad  principle  of  the  sovereignty  growing 
cut  of  tin'  aggregation  of  enumerated  powers  was  based  the 
power  to  charter  a  national  bank,1  the  power  to  exercise  the 
right  of  eminent  domain,-'  the  power  to  issue  legal  tender 
notes.' and  the  power  to  exclude  aliens.4  The  power  to  issue 
l!  tender  notes,  which  was  strongly  controverted,  was  based 
upon  two  enumerated  powers,  that  of  coining  money  and 
thereby  establishing  a  national  currency,  and  also  upon  the 
commerce  power.  It  was  also  declared  to  be  a  power  inherent 
in  sovereignty,  as  exercised  by  other  sovereignties  at  the  time 
of  the  adoption  of  the  constitution,  and  not  expressly  withheld 
by  the  constitution  from  congress. 

As  a  political  sovereignty  the  government  of  the  United 
States  may  by  physical  force,  through  its  official  agents,  in  the 
enforcement  of  its  powers,  exercise  complete  sovereignty  over 
every  part  of  American  soil  which  belongs  to  it.  There  is  a 
"Peace  of  the  United  States."  and  this  Peace  can  be  en- 
forced by  the  executive"'  in  the  protection  of  the  judicial 
officers  of  the  United  States  throughout  the  United  States  and 
within  the  limits  of  any  State.  These  fundamental  principles 
veiy  strongly  asserted  in  the  Debs  case,"  where  the  court 
Baid  that  the  government  of  the  United  States,  in  the  exercise 
of  its  power  over  the  mails  and  in  protecting  interstate  com- 
merce,  had  jurisdiction  over  t-vi^vy  foot  of  soil  in  its  territory 
and  acted  directly  upon  every  citizen.  The  decision  was  ex- 
pressly  based  upon  the  sovereign  power  of  the  United  States 

I  Mcl  lulloch  v.  Maryland,  supra.  S.  581  (1889),  32  L.  Ed.  1068,  149  U.  S. 

-K..M    v.  United  State*,  91    U.   8.  698  (1893),  37  L.  Ed.  903. 

.  I..  Ed.  I  !'.•    1875);  Stockton  v.         -In  re  Nagel,  135   U.  S.  1  (1890),  34 

Baltim  I.  Rep.  '■>.  I..  Ed.  55. 

I  «gal  Tender  ( '  i  3e,  -•"/"'"•  ''  Supra,  §  !• 

1  Chinese  Exclusion   <  ';i  I 


§  5.]       INTERSTATE    COMMEKCE    UNDER    FEDERAL    CONSTITUTION.  9 

within  the  limits  of  its  enumerated  powers,  and  on  the  power 
of  the  government  to  enforce  that  sovereignty  through  the  exec- 
utive or  through  the  courts,  acting  directly  through  the  citizens 
and  not  through  the  agencies  of  a  state,  when  the  federal 
authority  is  resisted. 

The  complexity  of  our  federal  governmental  system  includes 
this  distinct  sovereign  power  in  the  federal  government  with 
sovereign  powers  in  the  states.  In  the  language  of  Chief  Jus- 
tice Marshall,1  the  powers  of  a  sovereign  are  divided  between 
the  government  officers  of  the  Union  and  those  of  the  states. 
They  are  each  sovereign  with  respect  to  the  rights  committed 
to  it,  and  neither  sovereign  with  respect  to  the  rights  committed 
to  the  other.  The  Supreme  Court  of  Massachusetts2  said  that 
it  was  a  bold,  wise  and  successful  attempt  to  place  the  people 
under  two  distinct  governments,  each  sovereign  and  independ- 
ent within  its  own  sphere  of  action,  dividing  the  jurisdiction 
between  them,  not  by  territorial  limits  nor  by  the  relation  of 
superior  or  subordinate,  but  classifying  the  subjects  of  jurisdic- 
tion and  designating  those  over  which  each  had  entire  and  in- 
dependent  jurisdiction. 

The  federal  government  therefore,  though  sovereign  within 
the  sphere  of  its  enumerated  powers,  has  not  what  has  been 
termed  inherent  sovereignty,  nor  has  it  any  general  police 
powers;  but  with  its  wide  scope  of  selection  of  the  means  for 
the  execution  of  its  enumerated  powers  the  distinction  is  hardly 
a  practical  one  in  the  actual  working  of  our  dual  political 
system. 

§  5.  Gibbons  v.  Ogden. —  The  judicial  construction  of  the 
commerce  clause  begins  in  1824:  with  the  great  opinion  of  Chief 
Justice  Marshall  in  Gibbons  v.  Ogden,3  wherein  a  grant  of  the 
state  of  New  York  for  the  exclusive  right  to  navigate  the 
waters  of  New  York  with  boats  propelled  by  fire  or  steam  was 
held  void  as  repugnant  to  the  commerce  clause  of  the  constitu- 
tion, so  far  as  the  act  prohibited  vessels  licensed  by  the  laws  of 
the  United  States  for  carrying  on  the  coast  trade  from  navigat- 
ing the  said  waters  by  fire  or  steam. 

iMcCulloch  v.Maryland,  4  Wheat.  17  Johns.    488  (1820),  and  Kent,  J, 

316  (1819),  4  L.  Ed.  579.  in  4  Johns.  Ch.  150  (1819).  and  also  in 

2  Opinion  of  Justices,  14  Gray,  615.  Livingston  v.  Van  Ingen,  9  Johns.  507 

s  9  Wheat.  1.  6  L.  Ed.  23,  reversing  (1812.) 


10       INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.       [§  G. 

The  broad  and  comprehensive  construction  of  the  term 
"commerce  "  in  this  opinion  is  the  basis  of  all  subsequent  de- 
cisions construing  the  commerce  clause,  and  is  the  recognized 
source  of  authority.  Commerce  is  more  than  traffic;  it  includes 
intercourse.  The  power  to  regulate  is  the  power  to  prescribe 
the  rules  by  which  commerce  is  to  be  governed.  This  power 
like  all  others  vested  in  congress  is  complete  in  itself,  and  may 
b  ■  exercised  to  its  utmost  extent,  and  acknowledges  no  limita- 
tions other  than  as  prescribed  in  the  constitution.  The  power 
over  commerce  with  foreign  nations  and  among  the  several 
states,  said  the  court,  is  vested  in  congress  as  absolutely  as  it 
would  be  in  a  single  government  having  in  its  constitution  the 
same  restrictions  on  the  exercise  of  the  power  as  is  found  in 
the  constitution  of  the  United  States.  The  power  comprehended 
navigation  within  the  limits  of  every  state,  so  far  as  navigation 
may  be  in  any  manner  connected  with  commerce  with  foreign 
nations  or  among  the  several  states,  or  with  the  Indian  tribes, 
and  therefore  it  passed  beyond  the  jurisdictional  line  of  New 
York  and  included  the  public  waters  of  the  state  which  were 
connected  with  such  foreign  or  interstate  commerce. 

The  most  important  and  far-reaching  declaration  in  the 
opinion  was  that  of  the  supremacy  of  the  federal  power,  so 
that  in  any  case  of  conflict  the  act  of  congress  was  supreme, 
and  state  laws  must  yield  thereto,  though  enacted  in  the  exer- 
cise of  powers  which  are  not  controverted. 

6.  What  is  commerce. —  The  term  "commerce"  is  not  de- 
fined in  the  constitution,  but  its  meaning  has  been  determined 
by  the  process  of  judicial  inclusion  and  exclusion  on  the  broad 
and  comprehensive  basis  laid  down  in  Gibbons  v.  Ogden. 
Commerce,  it  was  there  said,  is  not  traffic  alone,  it  is  inter- 
course. "  It  described  the  commercial  intercourse  between  na- 
tions, and  parts  of  nations  in  all  its  branches,  and  is  regulated 
by  prescribing  rules  for  carrying  on  that  intercourse." 

In  the  Passenger  Cases1  the  rule  declared  in  Gibbons  v.  Og- 
den was  applied  in  holding  invalid  certain  state  statutes  im- 
posing taxes  upon  alien  passengers.  It  was  said  that  com- 
merce included  navigation  and  intercourse  and  the  transporta- 
tion of  passengers. 

1  7  How.  283  (1849  ,  12  L.  Ed.  102. 


§  6.]       INTERSTATE    COMMERCE    UNDER   FEDERAL    CONSTITUTION.       11 

In  the  Pensacola  Telegraph  Company  case1  the  court  said 
that  since  the  case  of  Gibbons  v.  Ogden  it  had  never  been 
doubted  that  commercial  intercourse  was  an  element  which 
comes  within  the  power  of  regulation  by  congress,  and  that 
the  power  thus  granted  was  not  confined  to  the  instrumentali- 
ties of  commerce  known  or  in  use  when  the  constitution  was 
adopted,  but  kept  pace  with  the  progress  of  the  country,  adapt- 
ing themselves  to  the  new  developments  of  time  and  circum- 
stances.    In  the  language  of  the  court : 

"■They  extend  from  the  horse  with  its  rider  to  the  stage 
coach,  from  the  sailing  vessel  to  the  steamboat,  from  the  coach 
and  steamboat  to  the  railroad,  and  from  the  railroad  to  the 
telegraph,  as  these  new  agencies  are  successively  brought  into 
use  to  meet  the  demands  of  increasing  population  and  wealth. 
They  wrere  intended  for  the  government  of  the  business  to 
which  they  relate  at  all  times  and  under  all  circumstances." 

In  a  later  case  it  was  said2  that  the  commerce  wThich  con- 
gress could  regulate  included  not  only  the  interchange  and 
transportation  of  commodities  or  visible  and  tangible  things, 
but  the  carriage  of  persons  and  the  transmission  by  telegraph 
of  ideas,  orders  and  intelligence. 

The  electrically  transmitting  of  articulate  speech  by  tele- 
phone between  states  is  interstate  commerce.  This  was  as- 
sumed by  the  Supreme  Court  in  holding  that  the  act  of  Jul}7 
24,  1SG6  did  not  apply  to  the  telephone  business,  telephone 
communication  being  unknown  at  the  time  of  the  passage  of 
that  act.  The  court  therefore  said  that  when  the  act  of  1866 
spoke  of  telegraph  companies  it  could  have  meant  only  such 
companies  as  employed  the  means  then  in  use  or  embraced  by 
existing  inventions  for  the  purposes  of  transmitting  messages 
merely  by  sounds  of  instruments  or  by  signs  and  writing.3 

While  a  bridge  is  not  a  common  carrier,  it  affords  a  highway 
for  such  carriage,  and  a  state  enactment  prescribing  the  rate 
of  toll  on  an  interstate  bridge  is  an  unauthorized  regulation  of 
interstate  commerce.4     Commerce  among  the  states,  therefore, 

1 96  U.  S.  1  (1877),  24  L.  Ed.  708,  711.  3  Richmond  v.  Southern  Bell  Tele- 
Construing  act  of  July  24,  1866.  as  a  phone  Co.,  174  U,  S.  761  (1899),  43  L. 
prohibition  of  all  state   monopolies  Ed.  1162. 
in  interstate  telegraph  business.  4  Covington,  etc.  Bridge  Co.  v.  Ken- 

2W.  U.  Tel.  Co.  v.  Pendleton.  122  tucky,  154  U.  S.  204  (1894),  38  L.  Ed. 

U.  S.  347  (1887),  30  L.  Ed.  1187.  962.     As  to  taxation  of  an  interstate 


12       INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.       [§  6. 

embraces  navigation,  transportation,  of  passengers  and  freight 
traffic  and  the  communication  of  messages  by  telegraph1  and 
by  telephone.3 

The  carrying  of  lottery  tickets  from  one  state  to  another  by 
corporations  or  companies  whose  business  it  is  to  carry  tangible 
property  from  one  state  to  another,  constitutes  interstate  com- 
merce which  may  be  properly  prohibited  by  congress  under  its 
power  of  regulation.3 

Interstate   commerce,  as  distinguished  from  domestic  com- 
merce, includes  traffic  between  points  in  the  same  state,  but 
which  in  transit  is  carried  through  another  state.4     It  follows 
that  the  railroad  commission  of  a  state  cannot,  without  violat- 
ing the  commerce  clause,  fix  and  enforce  rates  for  the  continu- 
ous transportation  of  goods  between  such  terminal  points.     A 
tax  on  an  interstate  railroad  can  be  apportioned  according  to 
mileage  in  a  state  (see  §10,  infra),  but  when  a  freight  rate  is 
established  it  must  be  established  as  a  whole.    (  See  §  109,infra.) 
Commerce  includes  .navigation,  and  the  power  to  regulate 
commerce  comprehends  the  control,  for  that  purpose,  and  to 
the  extent   necessary,  of  all  the  rivers   of  the  United  States 
which  are  accessible  from  a  state  other  than  those  in  which 
they  lie."'     The  right  to  regulate  navigation  carries  with  it  the 
right  to  regulate  and  improve  navigable  rivers  and  the  ports 
on  such  rivers,  and  the  power  to  close  one  of  several  channels 
in    a   navigable  stream,    if  in  the  judgment  of  congress   the 
navigation  of  the  river  will  be  thereby  improved.     Thus  the 
power  of  congress  over  the  Savannah  river  was  not  affected 
l.v  the  compact  between  South  Carolina  and  Georgia  in  1767, 
before  the  adoption  of  the  constitution."     (As  to  concurrent 
power  of  state  in  river  improvements,  see  chap.  2,  infra.) 

I o  constitute  interstate  commerce,  it  must  be  so  in  fact  and 
lea  only  in  intention.  The  intention  to  ship  manufactured  goods 

bridge  see  Henderson  Bridge  Co.  v.  3  Lottery    Cases,    18S     U.    S.    321 

Kentucky,  166   U.  S.  150  (1897),  41    I..  (1903),  four  Judges  dissenting,  47  L. 

Ed.  953,  and  Henderson  Bridge  Co.  v.  Ed.  492. 

Henderson,  173  U.  S.  592,  48  L.   Ed.  ■»  Han  ley  v.  K.  C.  So.  R.  Co.,  187  U. 

1899).  S.  617  (1903),  47  L.  Ed.  333. 

i Pensacola  Telegraph  Co.  case,  sm-  5Gilman  v.  Philadelphia,  3  Wal- 

pra,  lace  724,  IS  L.  Ed.  99. 

2 Central  Union  Tel.  Co.  v.  State,  (iSouth  Carolina  v.  Georgia,  93  U. 

L18  I nd.  l'.il.and  In  re  Penn.  Tel.  Co.,  S.  4.  23  L.  Ed.  782  (1876).     As  to  the 

t8  N.  J.  Eq.   191.  admiralty  juris  diction,  see  infra.  %  12. 


§  7.]       INTERSTATE    COMMERCE    UNDER    FEDERAL   CONSTITUTION.       13 

to  other  states  does  not  make  a  contract  for  the  operation  of  a 
factory  for  their  manufacture  relate  to  interstate  commerce  in 
a  constitutional  sense  so  as  to  exempt  it  from  the  operation  of 
state  laws,1  nor  does  such  intention  to  export  property  from 
the  state  constitute  a  ground  for  the  exemption  from  the  power 
of  State  taxation.  (See  §  IS,  infra.) 

§7.  What  is  not  commerce. —  While  commerce  is  more 
than  traffic  and  includes  commercial  intercourse  and  the  trans- 
mission of  intelligence,  it  does  not  include  the  contractual  rela- 
tions between  citizens  of  different  states,  which  are  incidental 
or  even  in  one  sense  are  essential  to  interstate  commercial  in- 
tercourse. The  distinction  may  be  illustrated  by  a  bill  of  lad- 
ing and  a  bill  of  exchange.  A  bill  of  lading  upon  an  interstate 
or  foreign  shipment  represents  the  property  shipped,  and  in 
the  case  of  an  interstate  shipment  is  beyond  the  taxing  power 
of  a  state,2  and  in  the  case  of  a  foreign  shipment  a  tax  upon  a 
bill  of  lading  is  a  tax  upon  exports,  and  therefore  beyond  the 
taxing  power  of  either  the  state  or  federal  government.3  On 
the  other  hand,  a  bill  of  exchange,  whether  drawn  on  an  inter- 
state shipment  or  a  foreign  shipment,  is  an  incident  of  such 
commerce  and  not  a  part  of  it.  It  follows,  therefore,  that  a 
broker  dealing  in  foreign  bills  of  exchange  is  not  eno-ao-ed  in 
commerce,  but  in  supplying  the  instrumentalities  of  commerce, 
and  a  state  tax  upon  money  and  exchange  brokers  is  not  void 
as  a  regulation  of  commerce.4 

The  business  of  a  man  vfacturing  company,  although  the  man- 
ufactured product  is  sold  by  the  company  in  other  states  and 
in  foreign  countries,  is  not  interstate  commerce.5  Commerce 
succeeds  manufacture  and  is  not  a  part  of  it,  and  the  relation 

diamond    Glue    Co.    v.    United  gage  Co.,  9:3   Ala.  137.       Mr.  Hamil- 

States  Glue  Co.,  E.  D.  of  Wis.  UfJ00),  ton,  in  bis  argument  on  the  power  to 

10;]  Fed.  Rep.  838.  charter  a   national    bank,  8   Hamil- 

^Almy     v.     California,    24    How.  ton's  Works  (Lodge)  pp.  179-208,  enu- 

169,  16  L.  Ed.  644  (1860):  Woodruff  v.  merates.  among   the   subjects   over 

Parham,  8  Wall.    123  (1870),  19  L.  Ed.  which    he   had   little  doubt  the  na- 

882.  tional  power  extended,  the  regulation 

s  Fairbanks  v.   United   States,  1S1  of  policies    of    insurance    and  bills 

U.  S.  283  (1901),  45  L.  Ed.  862.  of  exchange   drawn  by  a   merchant 

4  Nathan     v.     Louisiana.    8    How.  of  one  state  upon  a  merchant  of  an- 

78   (18,10),   12  L.  Ed.  992.     The    lend-  other. 

ing  of  money    by  a   citizen    of  one        5Kidd  v.  Pierson.  128  U.S.  1  (1888), 

state  to  a  citizen  of  another  is  not  in-  32  L.Ed.  846;  United  States  v.  Knight 

terstate  commerce.     Helms  v.  Mort-  Co.,  156  U.  S.   1   (1895).  89    L.  Ed.  325. 


14:      INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.       [§  8. 

of  the  manufacturer,  in  such  a  case,  to  interstate  and  foreign 
commerce  is  incidental  and  indirect,  and  the  business  therefore 
is  subject  only  to  state  control. 

Trademarks^  though  useful  and  valuable  aids  of  commerce, 
are  not  subject  to  congressional  regulation,  unless  limited  to 
their  use  in  commerce  with  foreign  nations  and  anions;  the 
several  states  and  with  Indian  tribes.1 

§  8.  Insurance  is  not  commerce. — An  important  applica- 
tion of  this  principle,  that  the  contractual  relations  incidental 
to  commerce  are  not  included  in  the  commerce  clause,  has  been 
made  in  relation  to  the  business  of  insurance.  The  business  of 
fire  and  marine  insurance  is  intimately  related  to  interstate 
and  foreign  commerce,  and  is  indeed  an  essential  feature  of 
such  commerce,  while  life  insurance  involves  an  associated  re- 
lation for  the  averaging  of  human  lives,  extending  not  only 
through  the  states  of  this  country  but  foreign  countries.2  It 
was  first  held  in  the  case  of  a  foreign  fire  insurance  company 
which  claimed  exemption  from  state  control,  that  a  policy  of 
insurance  was  not  an  instrument  of  commerce,  but  was  a  mere 
contract  for  indemnity  against  loss  by  fire,  and  that  the  fact 
that  the  parties  were  domiciled  in  different  states  did  not  make 
such  contracts  interstate  transactions  within  the  meaning;  of 
the  commerce  clause.3  Later  this  ruling  was  applied  to  a  con- 
tract of  marine  insurance,4  and  the  court  said,  if  the  power  to 
regulate  interstate  commerce  applied  to  all  the  incidents  to 
which  commerce  might  give  rise,  and  to  all  the  contracts  which 
might  be  made  in  the  course  of  its  transaction,  the  power  would 
embrace  the  entire  sphere  of  mercantile  activity  in  any  way 
connected  with  trade  between  the  states.  Finally,  in  1U00,  the 
ruling  was  extended  to  the  case  of  mutual  life  insurance,  al- 
though here  it  was  contended  that  the  policies  were  not  mere 

1  Trade  Mark  Cases,  100   U.  S.  82,  countries  and  foreign  governments. 

15  I..  Ed.  550  (1879).  He     urges     congress     to     consider 

2President    Roosevelt,  in  his  mes-  whether  the  power  of  the  Bureau  of 

:  December  1904,  says  thatthe  Corporations,  infra,  %  850,  could  not 

business  of  insurance  vitally  affects  constitutionally  beextended  tocover 

the  gnat  mass  of  the  people  of  the  interstate  transactions  in  insurance. 

United  States,  and  is  national  and  3Paul  v.  Virginia,  8  Wall.168  (1869), 

nol  local  in  its  application,  and  that  1!>  L.  E.I.  857. 

it  involves  a  multitude  of  transac-  *Hooper   v.   California,   155   U.S. 

tions  among  the  people  of  the  differ-  647    1893),  :J'J  L.  Ed.  297. 
ent  states  ami    between    American 


§8.]       INTERSTATE    COMMERCE    UNDER    FEDERAL   CONSTITUTION".       15 

contracts  of  indemnity,  but  represented  an  associated  relation 
based  on  the  comparative  certainty  of  the  average  life  and  the 
uncertainty  of  the  individual  life,  thus  necessitating  a  uniform 
law  controlling  this  associated  relation  of  parties  resident  in 
different  states  and  countries.  The  court,  however,  refused  to 
distinguish  the  business  of  mutual  life  insurance  from  that  of 
fire  and  marine  insurance.1  The  business  of  insurance  there- 
fore, in  all  its  branches  is  subject  to  the  legislation  of  the 
different  states2  wherein  the  companies  are  located. 

It  was  strongly  contended  by  the  dissenting  judges  in  the 
lottery  cases,  supra,  that  lottery  tickets,  under  the  ruling  in  the 
insurance  cases,  were  mere  evidences  of  contractual  relations, 
furnishing  the  means  of  enforcing  contract  rights,  and  were 
not  instruments  of  commerce  in  any  sense.  It  was  ruled  in 
the  prevailing  opinion,  however,  that  lottery  tickets  are  sub- 
jects of  traffic,  and  are  therefore  subjects  of  commerce. 

§  9.  What  are  the  subjects  of  commerce. —  Commerce 
between  the  states  includes  only  the  subjects,  which  are  prop- 
erly and  lawfully  articles  of  commerce.  The  regulating  power 
of  congress  does  not  deprive  the  states  of  their  inherent  police 
power  in  protecting  the  lives  and  property  of  their  citizens, 
although  the  line  is  oftentimes  difficult  to  draw,  as  the  dis- 
sents in  the  supreme  court  show,  between  reasonable  police 
regulation  which  only  indirectly  or  incidentally  effects  inter- 
state  commerce,  and  legislation  which  invades  the  preroga- 
tives of  congress. 

Thus  the  states  may  legislate  to  prevent  the  spread  of  crime, 
and  may  exclude  from  their  limits  paupers,  convicts,  persons 
likely  to  become  a  public  charge,  and  persons  afflicted  with 
contagious  diseases.3  A  state  may  protect.the  moral  as  well  as 
the  physical  health  of  its  people.  A  corpse  is  not  the  subject 
of  commerce.4  This  power  of  the  state  includes  the  right  to 
protect  the  people  against  fraud  and  deception  in  the  sale  of 
food  products.     The  principle  was  applied  by  the  court  in  sus- 

1  New  York  Life  Ins.  Co.  v.  Crav-  3  But  as  to  right  of  excluding  for- 
ens,  178  U.  S.  389  (1890),  44  L.  Ed.  eign  immigrants,  see  Henderson  v. 
1116.  New  York,  92   U.  S.  259  (1875),  23  L. 

2  As  to  the  exercise  of  their  power  Ed.    543,    Chy     Lung    v.    Freeman, 
by  the  states  and  its  effect  upon  the  92  TJ.  S.  275  (1875).  23  L  Ed.  550. 
business    of    insurance,    see    infra,  4  In  re  Ayong  Yung  Quy,  G  Saw. 
8  15.  442. 


It)       INTERSTATE    COMMERCE    DNDER    FEDERAL    CONSTITUTION.       [g  lJ. 

taining  a  Massachusetts  statute,1  which  prohibited  the  manu- 
facture and  sale  of  imitation  butter,  oleomargarine,  artificially 
colored  so  as  to  cause  it  to  look  like  butter. 

This  principle  does  not  extend  to  the  exclusion  of  any  com- 
modity which  is  generally  recognized  as  a  legitimate  article 
of  commerce,  though  condemned  and  sought  to  be  excluded 
by  the  legislation  of  a  particular  state.  A  state  cannot  deter- 
mine for  itself  upon  its  own  standards  of  public  opinion  what 
are  and  what  are  not  lawful  subjects  of  commerce,  against  the 
generally  accepted  opinion  of  the  commercial  world.  This 
distinction  was  illustrated  in  another  oleomargarine  case2 
where  the  court  held  invalid  a  statute  of  Pennsylvania  which 
absolutely  prohibited  the  manufacture  or  sale  of  oleomargarine, 
so  far  as  that  statute  prohibited  the  introduction  of  oleomar- 
garine from  another  state  and  its  sale  in  the  original  package. 
.  The  court  distinguished  the  Plumley  (Massachusetts)  case  on 
the  ground  that  it  was  based  upon  the  right  of  the  state  to 
prevent  deception  and  fraud,  and  that  the  right  of  a  state  in 
relation  to  the  administration  of  its  internal  affairs  was  one 
thing,  and  its  right  to  prevent  the  introduction  within  its  limits 
of  an  article  of  commerce  was  another  and  totally  different 
thing.  The  court  in  its  opinion  referred  to  the  fact  that  oleo- 
margarine had  been  treated  by  congress  as  a  proper  subject  of 
taxation, ;;  that  this  was  in  effect  an  affirmative  declaration  by 
by  congress  that  it  was  a  proper  subject  of  commerce,  and 
that  it  was  established  by  competent  testimony  that  it  was  a 
wholesome  human  food  and  a  legitimate  subject  of  commerce. 

This  conflict  between  local  and  general  public  opinion  as  to 
what  are  proper  subjects  of  commerce  was  illustrated  in  the  case 
of  spirituous  liquors4  which  the  court  held  were  legitimate  sub- 

1  Plumley  v.  Massachusetts,  155  U,  2  Schollenberger  v.  Pennsylvania, 

S.  161(1895),  39  L.  Ed.  223.     Thesame  171   U.  8.  1   (1898),   43  L.  Ed.  4(.i:  In 

principle  wasapplie  1  in  Crossman  v.  Collins  v.  New  Hampshire.  171  U.  S. 

Lurman,   192  U.S.   189(1904),    18   L  31  (1898),  43  L.  Ed.  60,  the  court  held 

Ed.    ia;.  in  sustaining   a   New  York  invalid,  as  being- in  necessary  effect 

statute  as  to  the  importation  of  arti-  prohibitory,  astatuteprohibitingsale 

ficially  co  ored  foreij  n  coffee.     I  leld  of  oleomargarine  as  a  substitute  for 

that  there                 rror  in  excluding  butter  unless  colored  pink. 

that    it    was  a   recognised  3Act  of  August  2.   1866,  c.  40,  24 

article  of  commerce.     See  also  Cap-  statutes  at  large.  209, 

•  ity  Dairy  Co.  v.  Ohio,  183  U.  S.  'See  infra,  ?  21. 
902 .  16  L  Ed.  171. 


§  lU.]    INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.       17 

jects  of  commerce,  the  introduction  and  sale  whereof  in  the 
original  package  could  not  be  prohibited  by  the  state.  The 
right  of  the  state  in  its  control  of  its  domestic  commerce  to  en- 
force its  own  views  of  public  policy  in  prohibiting  the  manu- 
facture and  sale  of  both  liquors  '  and  oleomargarine 2  had  been 
sustained  by  the  court. 

Tobacco  is  also  a  legitimate  article  of  commerce  and  the  su- 
preme court  said  that  it  could  not  take  judicial  notice  of  the 
fact  that  it  was  more  noxious  in  the  form  of  cigarettes  than  in 
other  forms."  It  was  therefore  subject  to  the  same  extent  as 
intoxicating  liquors  to  the  police  power  of  the  state,  that  is, 
the  state  could  declare  how  far  cigarettes  should  I33  sold  or 
prohibit  their  sale  entire!}''  after  they  had  been  taken  from  the 
original  packages  or  had  left  the  hands  of  the  importer,  pro- 
viding no  discrimination  was  used  as  against  those  imported 
from  other  states,4  but  could  not  prohibit  their  importation. 

The  lawful  police  power  of  the  state  also  extends  to  the  rea- 
sonable inspection  of  articles  brought  in  from  the  other  states, 
this  right  of  inspection  being  expressly  recognized  by  the  con- 
stitution in  the  case  of  foreign  importations.'  But  this  inspec- 
tion must  be  reasonable,  and  is  invalid  if  burdened  with  such 
conditions  as  would  wholly  prevent  the  introduction  of  the 
sound  article  from  other  states.6 

§  10.  Wild  game  and  fish  as  subjects  of  commerce. —  Law 
ful  subjects  of  commerce  must  be  capable  of  private  ownership, 
and  while  this  is  not  subject  to  the  determination  of  a  state  in 
relation  to  recognized  subjects  of  commerce,  it  is  subject  to  the 
state  control  where  the  matter  is  not  a  subject  of  private  owner- 

iMugler  v.  Kansas,  123  U.  S.  623,  though   applied   to   articles   sold  in 

31  L.  Ed.  205  (1877).  original    packages    imported    from 

-  Powell  v.  Pennsylvania,  127  U.  S.  other  state-. 

678  (1888),  32  L.  Ed.  203.    See  also  Ar-  ::  Austin  v.  Tennessee,  179  U.  S.  343 

buckle  v.  Blackburn.  6th  circuit,  51  (1900),  45  L.  Ed.  224. 

C.  C.  A.  122,  113  Fed.  Rep.  616,  65  L.  4  As  to  size  of  the  original  package, 

R.  A.  864,  where  the  court  refused  to  see  infra,  §  16. 

enjoin    the   enforcement   of  a  state  5Art.  I.   sec.   10.  par.  2:    Patapsco 

statute  prohibiting  coloring,  coating  Guano  Co.  v.  North  Carolina  Board 

or  polishing  an  article  intended  for  of  Agriculture,  171  TJ.  S.  345  (1898), 

food,  whereby  damage  or  inferiority  43  L.  Ed.  191. 

is  concealed.     The  court  said  this  6See  Minnesota  v.  Barber,  136  TJ. 

was  not  in  conflict  with  the  power  S.  313  (1S90),  34  L.  Ed.  455. 
of  congress  to  regulate  commerce, 


IS       INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.    [§  10. 

ship  except  as  permitted  by  state  law.  Thus  the  wild  game 
within  a  state  at  common  law  belongs  to  the  sovereign,  and  in 
this  country  to  the  people  in  their  collective  capacity,  and  the 
state  therefore  has  a  right  to  say  that  it  shall  not  become  the 
subject  of  commerce.  Upon  this  principle  the  Supreme  Court 
sustained  a  Connecticut1  statute  prohibiting  the  killing  of  cer- 
tain game  in  the  state,  with  the  intent  of  transporting  the 
same  out  of  the  state. 

I'u  ler  the  same  principle  the  state  determines  on  what  condi- 
tions the  products  of  oyster  beds  and  fisheries  may  become  sub- 
jects of  commerce, as  each  state,  subject  to  the  paramount  control 
of  navigation  in  the  federal  government,  owns  the  beds  of  all 
tide  waters  and  public  waters  in  its  jurisdiction.2 

In  the  case  cited  from  Massachusetts  the  courts  held  valid 
an  act  of  that  state  prohibiting  fisheries  in  the  waters  of  Buz- 
zard's Bay,  except  under  the  regulations  prescribed  by  the  act, 
and  held  that  it  applied  to  a  vessel  which  had  a  license  to  fish 
under  the  laws  of  the  United  States.  There  has  been  no  grant 
to  congress  of  power  over  fisheries,  and  these  remain  under  the 
exclusive  control  of  the  states.  The  extent  of  the  territorial 
jurisdiction  of  the  state  of  Massachusetts  over  the  sea  adjacent 
to  its  coast  was  held  to  be  that  of  an  independent  nation,  and 
except  so  far  as  the  right  of  control  over  this  territory  had  been 
granted  to  the  United  States,  the  control  remained  with  the 
state,  subject  of  course  to  the  admiralty  and  maritime  jurisdic- 
tion of  the  United  States.  Within  what  are  generally  recog- 
nized as  the  territorial  limits  of  states  by  the  law  of  nations,  a 
state  can  define  its  boundaries  on  the  sea  and  the  boundaries  of 

1  Geer   v.   Connecticut,    101  U.  S.  to  have  trout  in  possession  for  sale 

10  L.  Ed.  793.     After  this  although  brought  from  another  state 

on  it  was  held  in  the  case  of  In  where  it  was  lawfully  caught.  Some 

re    Davenport,    102   Fed.    Rep.    510,  of  the   state   courts   had   held   that 

U.  S.  Circuit  Court  of  Wash-  such  laws  were  invalid  as  regulative 

i,  that  a  state  had  no  power  to  of  interstate  commerce.   See  State  v. 

forbid  traffic  in  game  brought  from  Sanders.  19  Kan.  127,  and  Territory 

another  state  where  it  had  been  law-  v.  Evans,  2  Idaho.  634. 
fully   killed;  hut  the  U.   S.    Circuit        -McCready    v.   Virginia.  94   U.  S. 

Court  1.   Rep.  633  391  (1876),  21  L.  Ed.  248;  Manchester 

[n  r     Deininger,  declined  to  v.  Massachusetts,  139  U.  S.  210  (1890), 

follow   this  view   and    held    valid  a  35 L.  Ed.  159. 
making   it  a  penal  offense 


§  11.]    INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.       19 

its  counties;  and  by  this  test  Massachusetts  can  properly  include 
Buzzard's  Bay  within  the  limits  of  its  counties. 

§  11.  Natural  oil  and  gas  as  subjects  of  commerce. —  Nat- 
ural oil  and  gas  are  not  subject  to  absolute  ownership  while  in 
the  confines  of  the  earth,  and  from  their  tendency  to  move 
from  one  place  to  another  have  been  called  in  some  of  the  de- 
cisions minerals  ferce  naturae.  They  become  however  lawful 
subjects  of  commerce  when  brought  to  the  surface  and  secured 
in  pipes.  A  statute  of  Indiana  prohibiting  the  piping  of  nat- 
ural gas  from  the  state  was  held  by  the  supreme  court  of  that 
state  to  be  an  attempted  regulation  of  interstate  commerce, 
and  violative  of  the  natural  right  of  dealing  with  property,  and 
therefore  void.  The  court  said  that  the  natural  gas  in  the  earth 
cannot  be  a  commercial  commodity,  but  when  brought  to  the 
surface  and  placed  in  pipes  for  transportation,  it  assumed  that 
character  as  completely  as  coal  in  cars  or  petroleum  in  tanks.1 

While  this  position  seems  to  be  conceded  in  all  the  courts  as 
to  the  commercial  character  of  oil  and  gas  when  brought  to  the 
surface  and  secured  in  possession,  it  is  also  recognized  that 
owing  to  the  peculiar  character  of  these  substances  the  property 
right  of  the  owner  of  the  land  in  such  mineral  oil  and  o-as 
while  confined  in  the  earth  is  necessarily  subject  to  qualifica- 
tions. Thus  an  act  of  Indiana  making  it  unlawful  for  the 
owner  of  a  natural  gas  or  oil  well  to  allow  or  permit  the  flow 
•of  gas  or  oil  from  any  such  wTell  to  escape  into  the  air,  without 
being  confined  within  the  well  or  proper  pipes,  for  a  longer 
period  than  two  days  after  the  gas  or  oil  shall  have  been  struck 
in  such  well,  was  not  a  violation  of  the  constitution  of  the 
United  States,  nor  taking  of  private  property  without  com- 
pensation, nor  a  denial  of  due  process  of  law,  but  was  a  lawful 
regulation  by  a  state  within  its  discretion  of  a  subject  which 
especially  comes  Within  its  lawful  authority.2 

1  State  ex  rel  v.  Indiana  &  Ohio  Indiana  Consumers  &  T.  R.  Co.  v. 
Gas  and  Mining  Co.,  120  Ind.  575.  Horlass,    131    Ind.    416;     Hague   v. 

2  Ohio  Oil  Co.  v.  Indiana,  177  U.  S.  Wheeler,  157  Pa.  St.  324;  Jamison  v. 
190,  44  L.  Ed.  729.  See  also  Brown  Indiana  Natural  Gas  &  Fuel  Co.,  128 
v.  Spill  man,  155  U.  S.  655,  39  L.  Ed.  Ind.  555,  12  L.  R.  A.  652:  Benedict  v. 
304:  Westmoreland  &  Cambria  Nat-  Construction  Co.,  49  N.  J.  Eq.  429; 
ural  Gas  Co.  v.  Dewitt,  130  Pa.  St.  Manufacturer  Gas  Co.  v.  Ind.  Nat. 
■235:  Townsend  v.  State,  147  Ind.  624;  G.  &  F.  Co.,  155  Ind.  545. 


2  '       INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.    [jU2. 

The  supremo  court  said  in  this  case  that  there  is  a  distinction 
between  animals  /era  natures  and  gas  and  oil,  in  that  in  the 
case  of  the  former  there  was  no  individual  proprietorship  until 
the  actual  reduction  of  the  property  to  possession,  the  property 
right  until  then  being  in  the  public.  In  the  case  of  natural  gas 
and  oil  no  such  right  exists  in  the  public;  and  in  the  case  of  the 
former  every  one  may  be  prohibited  from  seeking  to  reduce  to 
possession.  In  the  case  of  natural  gas  and  oil  however  the 
surface  proprietors  within  the  gas  field  have  the  right  to  re- 
duce to  possession  the  gas  and  oil  beneath,  and  they  cannot  be 
absolutely  deprived  of  this  right  without  the  taking  of  private 
property.  The  legislative  power  however,  from  the  peculiar 
nature  of  the  right  and  the  objects  upon  which  it  is  to  be 
exerted,  can  be  manifested  for  the  purpose  of  protecting  all  the 
collective  owners  in  the  gas  field  and  preventing  waste. 

It  was  urged  in  this  case  that  it  was  necessary  to  waste  the 
gas  in  order  to  force  up  the  oil;  but  the  court  said  this  was 
a  matter  which  addressed  itself  to  the  wisdom  of  the  legislature 
and  did  not  affect  the  power  to  make  the  regulation. 

§12,  The  commerce  clause  and  the  admiralty  jurisdic- 
tion.—The  federal  power  over  interstate  and  foreign  com- 
merce is  reinforced  as  to  the  commerce  on  water,  as  distin- 
gushed  from  Land  transportation,  by  section  2,  article  III,  of 
the  constitution,  extending  the  judicial  power  of  the  courts  of 
the  United  States  to  all  cases  of  admiralty  and  maritime 
jurisdiction.  It  is  not  within  the  scope  of  this  work  to  consider 
the  federal  legislation  enacted  in  the  regulation  of  this  admir- 
alty and  maritime  jurisdiction,  further  than  to  show  the  pro- 
ive  development  of  this  jurisdiction,  which  has  more  than 
kept  paee  with  the  judicial  development  of  the  commerce  clause. 

It  was  first  ruled,  following  the  English  precedents,1  that  the 
admiralty  courts  could  not  rightfully  exercise  jurisdiction 
except  in  cases  where  the  service  was  substantially  performed 
or  to  be  performed  upon  the  sea,  or  upon  waters  within  the 
ebband  flow  of  the  tides.  The  effect  of  this  decision  was  to 
ide  from  the  admiralty  and  maritime  jurisdiction  the  com- 
merce upon  the  great  lakes  and  navigable  rivers  of  the  United 
States.     It  was  not  until    1S-">1    that  the  earlier  decision  was 

iThe  Thomas  Jefferson,  10  Wheat.  128  (1825),  6  L  Ed.  358. 


§  13.]    INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.       21 

overruled,  and  it  was  definitely  decided  that  the  admiralty  and 
maritime  jurisdiction  granted  to  the  federal  government  by 
the  constitution  of  the  United  States  was  not  limited  to  tide 
waters,  but  extended  to  all  public  navigable  lakes  and  rivers 
where  commerce  was  carried  on  between  different  states  or 
with  foreign  nations.1  This  case  arose  upon  the  great  lakes, 
but  the  rule  was  subsequently  extended  to  cases  arising  upon 
the  navigable  rivers  of  the  United  States  where  there  was  no 
ebb  and  flow  of  the  tide.2 

Later  it  was  held  that  a  stream  lying  wholly  within  a  state 
and  forming  by  its  junction  with  Lake  Michigan  a  continuous 
highway  for  commerce,  both  with  other  states  and  with  foreign 
nations,  was  a  navigable  water  of  the  U'nited  States.3  In  this 
case  the  rule  was  announced,  that  those  rivers  must  be  re- 
garded as  public  navigable  rivers  in  law,  which  are  navigable 
in  fact,  and  that  they  constitute  navigable  waters  of  the  United 
States  within  the  meaning  of  the  acts  of  congress  in  contra- 
distinction between  the  navigable  waters  of  the  states,  when 
they  form  in  their  ordinary  condition  by  themselves,  or  by 
uniting  with  other  waters,  a  continued  highway  over  which 
commerce  is  or  can  be  carried  on  with  other  states  or  foreign 
countries,  in  the  customary  modes  in  which  such  commerce  is 
conducted  by  water.  It  is  immaterial  that  the  navigability  of 
such  a  river  may  be  interrupted  by  rapids  and  falls  over  which 
portages  are  required  to  be  made.4 

§  Vi.  Erie  canal  subject  to  admiralty  jurisdiction. —  In  a 
recent  case  the  admiralty  and  maritime  jurisdiction  has  been 
extended  to  the  Erie  canal,  which  lies  wholly  within  the  state  of 
New  York,  on  the  ground  that  it  connects  navigable  waters 
and  is  a  great  highway  of  commerce  between  ports  of  differ- 
ent states  and  foreign  countries,  and  is,  therefore,  a  navigable 
water  of  the  United  States  within  the  legitimate  scope  of  the 
admiralty  jurisdiction  of  the  courts  of  the  United  States.     In 

i  The  Genesee   Chief,  12   How.  443  *  The  Montello,  20  Wall.  430  (1874), 

(1851),  13  L.  Ed.  1058.  22  L.  Ed.  391;   Escanaba   Co.   v.  Chi- 

2  The  Magnolia,  20  How.  296  (1857),  cago,  107  U.  S.  678  (1882),  27  L.  Ed. 
15  L.  Ed.  909;  Fretz  v.  Bull.  12  How.  442;  Miller  v.  The  Mayor,  109  U.  S. 
466,  13  L.  Ed.  1068  (1851).           ■  385  (1883).  27  L.  Ed.  971;    In   re  Gar- 

3  The  Daniel  Ball,  10  Wall.  557  nett,  141  U.  S.  1  (1891),  35  L.  Ed.  631- 
(1870),  19  L.  Ed.  999. 


2'2       INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.    [§15. 

this  case  it  was  adjudged  that  the  enforcement  of  a  lien  in  rem 
for  repairs  to  a  canal  boat  engaged  in  traffic  on  the  Erie  canal 
and  the  Hudson  river,  and  at  a  port  in  the  state,  was  within 
the  admiralty  jurisdiction,  and  could  not  be  enforced  by  any 
proceeding  in  the  courts  of  the  state  of  New  York.1 

^14.     Jurisdicdictioti    of   federal    courts    in    admiralty 
cases. —  The  admiralty  and  maritime  jurisdiction  is  conferred 
bv  the  constitution  upon  the  judicial  power,  and  not  in  ex- 
3  terms  upon  the  legislative  power  of  the  federal  govern- 
ment.    The  Supreme  Court  however  has  held  that  the  power 
of  legislation  on  the  same  subject  must  necessarily  be  in  the 
national  legislature,  and  not  in  the  state  legislatures.      The 
federal  legislative  power  is  not  confined  to  the  boundaries  or 
class  of  subjects  which  limit  and  characterize  the  power  to  regu- 
late commerce;  but  in  maritime  matters  it  extends  to  all  mat- 
ters and  places  to  which  the  maritime  law  extends.     The  bound- 
aries and  limits  of  the  admiralty  and  maritime  jurisdiction  are 
matters   of  judicial  cognizance,  and    they  cannot  be  affected 
or  controlled  by  legislation,  whether  state  or  national.     The 
jurisdiction  of  the  federal  courts  in  maritime  cases,  therefore, 
is  broader  than  that  under  the  commerce  clause,  as  it  includes 
maritime  cases,  where  the  voyage  or  contract,  if  maritime  in 
character,  is  made  to  be  performed  wholly  within  a  single  state.* 
I*nder  the  judiciary  act  of  ITS'.)  the  jurisdiction  of  the  courts 
of  the  United  States  is  exclusive  in  all  cases  of  admiralty  and 
maritime  jurisdiction,  saving  to  suitors  a  common  law  remedy, 
where  the  common  law  is  competent  to  give  it:3 

§15.  State  corporations  in  interstate  commerce. —  The 
t  of  a  state  corporation  to  engage  in  business  in  another  state 
bv  locating  therein,  without  the  permission  of  that  state,  must 
depend  upon  whether  the  corporation  is  engaged  in  carrying 
on  interstate  commerce.  In  this  connection  the  term  u carry - 
ino  on  interstate  commerce"  is  limited  to  the  corporations  act- 
ual lv  engaged  in  carrying  on  interstate  coinmerce,  that  is,  com- 

i  The  Etoberl  W.  Parsons,  191  U.  S.  pairs  to  vessels  which  were  incapaoi- 
17,  1903),  4V  I..  Ed.  ?:;.  .Justices  Brew-  tated  for  foreign  commerce  and  de- 
er, Fuller.  Peckham  and  Harlan  dis-  signed  and  used  exclusively  for  mere 

ted   <>n  the  ground  that  tlie  con-  local  traffic  within  the  state. 

tract  was  not  a  maritime  contract  2In  re  Garnett,   141  U.  S.  1,  and 

and  that  the  admiralty  jurisdiction  cases  cited,  35  L.  Ed.  631. 

did  not  extend  to  contracts  for  re-  :iSec.  711  R,  S.,  U.  S. 


§  15.]    INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.       23 

mon  carriers  and  others  who  afford  the  facilities  whereby  com- 
merce is  carried  on  among  the  states  or  actually  carry  on  such 
commerce  and  does  not  include  manufacturing  and  trading 
companies  making  interstate  shipments.  Thus  all  public  car- 
riers, railroads,  steamboats,  telegraph  or  telephone  companies, 
bridge  and  ferry  companies  operating  in  different  states,  are 
carrying  on  interstate  commerce  in  this  sense.  The  state 
can  neither  exclude  corporations  of  this  ciass  actually  engaged 
in  interstate  commerce,  nor  can  it  impose  conditions  upon  the 
transaction  of  their  business  in  the  state,  though  it  may  tax 
their  property  employed  in  the  state. 

In  one  sense,  all  commercial  business  between  citizens  of 
different  states  is  interstate  commerce,  and  the  manufacturer 
who  ships  his  goods  to  the  purchasers  in  another  state  is  en- 
gaged in  interstate  commerce.  This  commerce  is  protected  by 
the  federal  power  against  discriminating  or  interfering  state 
legislation,  and  in  such  protection,  there  is  no  distinction  be- 
tween non-resident  individuals  and  corporations.  Corpora- 
tions, it  is  true,  are  not  citizens  within  the  meaning  of  the 
constitution,1  providing  that  citizens  of  each  state  shall  be  en- 
titled to  ali  the  privileges  and  immunities  of  the  citizens  of  the 
several  states,  though  they  are  persons  within  the  meaning  of  the 
fourteenth  amendment  and  are  therefore  entitled  to  due  pro. 
cess  of  law  and  the  equal  protection  of  the  laws.  The  right 
to  engage  in  interstate  commerce  does  not  depend  upon  citizen- 
ship, and  the  capacity  of  the  foreign  corporation  to  carry  on 
such  business  must  be  determined  by  its  own  charter,  granted 
by  the  state  of  its  creation,  and  by  the  law  of  the  state  in 
which  it  is  carrying  on  business.  The  manufacturing  or  trad- 
ing company  incorporated  and  doing  business  under  the  laws 
of  one  state  can  send  its  commercial  travelers  soliciting  sales 
through  other  states,  and  ma}'  ship  its  goods  to  the  purchasers, 
and  such  business  cannot  be  interfered  with  by  the  states  in 
the  exercise  of  either  their  taxing  or  police  powers.  Such  inter- 
state commerce  does  not  constitute  a  ''doing  of  business'1 
within  the  state.  But  while  the  foreign  manufacturing  or 
trading  corporation  may  sell  its  goods  in  the  state,  or  solicit 
sales  in  the  transaction  of  interstate  commerce,  it  cannot  es- 

i  Constitution,  art.  IV,  sec.  2;  Crutcher  v.  Kentucky,  141  U.  S.  47  (1901), 
35  L.  Ed.  649. 


24       INTERSTATE    COMMERCE    UNDER     FEDERAL    CONSTITUTION.    [§  10. 

tablish  a  business  office  in  the  state  without  the  consent  of  the 
state.  As  a  state  has  the  right  to  exclude  foreign  corporations, 
it  necessarily  has  involved  therein  the  right  to  impose  condi- 
tions upon  their  admission  into  the  state.1 

The  state  power  of  prohibiting,  absolutely  or  conditionally, 
the  foreign  corporations,  not  engaged  in  interstate  commerce 
in  the  constitutional  sense  from  doing  business  in  the  state  is 
illustrated  by  the  rulings  of  the  supreme  court  already  referred 
to  sustain-in"-  state  statutes  regulative  of  the  insurance  business. 
-  §  ipra.  Tims,  the  provisions  of  state  statutes  prescrib- 
ing terms  and  conditions  of  insurance  contracts  have  been  held 
to  be  written  into  the  policy  contracts  made  by  the  parties,  over- 
riding the  will  of  the  parties  and  making  contracts  for  them 
contrary  to  their  expressed  intent.2  These  statutes  were  sus- 
tained on  the  theory  that  the  state  had  the  power  to  deter- 
mine the  conditions  under  which  the  insurance  business  should 
be  conducted,  to  the  extent  of  writing  these  conditions  in  the 
policies  for  the  parties  and  controlling  the  terms  of  their  con- 
tracts, and  in  the  ease  of  foreign  corporations  such  conditions 
would  be  enforced  as  conditions  imposed  upon  their  being 
permitted  to  do  business  in  the  state,  and  to  which  the  com- 
panies are  presumed  to  assent  by  doing  businesss  in  the  state 
under  its  laws. 

§  16.  When  transit  ends;  the  original  package  in  interstate 
commerce. —  The  "  original  package  "  rule,  which  has  been  the 
subject  of  extended  judicial  discussion  both  in  relation  to  the 
taxing  power  as  well  as  the  police  power  of  the  state,  was  first 

1  Waters  Pierce  Oil  Co.  v.  Texas,  the  insurance  scheme,  which  is  based 

| ; ;  [J.  8.  28    1900  .  ill..  Ed.  657;  Phil-  upon  the  uncertainty  of  the  Individ- 

adelphia  Fire  Ass'n  v.  New  York,  119  ual   life  and  the  comparative  cer- 

L10    1886),  30  L  Ed.  342.  tainty  of  the  average  life  ascertained 

-  orient   Insurance   Co.   v.  Daggs,  from  human  experience,  and  which 

172  U.   S.   557     1899),    13   L.  Ed.  552;  therefore  contemplates  the  union  of 

Equitable    Life    Assurance    Soc.   v.  the  interests  of  a  large  number  of 

snte,  1  10  I'.  S.  326,  35 L.  Ed.  497  persons  resident  in  different  states 

1890);   New    York   Life  Ins.   Co.    v.  and   countries   and  the  administra- 

.  44  L.  tion  of  a  fund  for  the  mutual  benefit 

Ed.  1116.  under  a  single  applicatory  law.    In- 

:,In  mutual  life  insurance  it  is  ol>  surance  Co.  v.  Statham.  93  U.  S.  21, 

that  the  writing  of  different  2.J  L.  Ed.  789;  Bogardus  v.  Insurance 

state  statutes  into  the  policy  con-  Co.,  101 N.  Y.  329. 

tracts  is  necessarily  distinctive  of 


§  16.]    INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION. 


25 


declared  in  1827,  in  Brown  v.  Maryland.1  This  case  involved  the 
validity  of  a  statute  of  Maryland,  requiring  every  importer  of 
foreign  merchandise  to  take  out  a  license,  paying  therefor  fifty 
dollars.  The  court  admitted  the  difficulty  of  setting  a  time  when 
the  taxing  power  of  the  state  should  begin,  but  fixed  it  as  begin- 
ning when  the  original  package  in  which  the  goods  had  been  im- 
ported was  broken  up  or  sold,  and  thu,  was  first  laid  down  the 
"  original  package  "  rule.  While  the  court  has  adhered  to  this 
rule  in  respect  to  state  taxation  of  foreign  importations,  it  has 
not  been  extended  to  interstate  commerce,  so  that  goods  brought 
from  one  state  into  another  are  subject  to  the  taxing  power  of 
the  state,  whether  they  are  in  the  original  package  or  not;2 
that  is  to  say,  such  goods  which  have  reached  their  destination 
in  the  state  may  be  taxed  as  property  in  common  with  other 
property  in  the  state,  when  the  tax  is  levied  without  discrim- 
ination as  between  domestic  and  non-domestic  goods.3 

There  is  a  distinction,  however,  between  the  taxing  power 
of  a  state  and  its  police  power  with  reference  to  the  original 
packages  in  interstate  shipments.  In  the  absence  of  legisla- 
tion by  congress,  commerce  between  the  states  must  be  free, 
and  the  right  to  sell  goods  imported  is  an  inseparable  incident 
of  the  right  to  import.  Congress  alone  can  act  as  to  the  ad- 
mission of  goods  from  one  state  to  another,  and  its  non-action 
means  that  the  commerce  must  be  free.4   This  freedom  of  trans- 


1 12  Wheat.419.  6  L.Ed.  678.  Twenty 
years  later  Chief  Justice  Taney  said 
in  his  opinion  in  the  License  Cases, 
5-How.  1.  c.  505,  12  L.  Ed.  256,  that 
he  argued  this  case  for  the  state  of 
Maryland,  but  that  since  then 
matured  reflection  had  convinced 
him  that  the  rule  laid  down  by  the 
supreme  court  was  a  just  and  safe 
one.  It  was  a  very  difficult  question 
for  the  judicial  mind,  but  he  did  not 
see  how  the  line  could  be  drawn 
more  accurately. 

-  Woodruff  v.  Parham.  8  Wall.  123 
(1868),  19  L.  Ed.  382;  Brown  v.  Hous- 
ton, 114  U.  S.  622  (1885).  29  L.  Ed. 
257;  Pittsburgh,  etc.  Coal  Co.  v. 
Bates,  156  U.  S.  577  (1895),  39  L.  Ed. 
538. 


"American  Steel  &  Wire  Co.  v. 
Speed,  192  U.  S.  500,  48  L.  Ed.  538 
(1904). 

« Bowman  v.  Railway  Co.,  125  TJ.  S. 
465  (1888),  31  L.  Ed.  700;  Leisy  v. 
Hardin,  135  TJ.  S.  100  (1890).  34  L.  Ed. 
128,  overruling  the  License  Cases.  5 
How.  504  (1847),  12  L.  Ed.  256.  The 
distinction  between  the  state  police 
power  and  the  state  taxing  power  in 
relation  to  "original  packages "' im- 
ported from  other  states  is  illus- 
trated in  two  Iowa  cases  (January, 
1905).  decided  by  the  supreme  court. 
In  Am.  Exp.  Co.  v.  Coffin  the  po- 
lice interference  with  a  licpior  im- 
portation was  denied:  while  in  Cook 
v.  County  of  Marshall  tax  on  a  ciga- 
rette importation  was  sustained. 


2G       INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.    [§16. 

portation  and  of  sale  extends  to  goods  in  their  original  pack- 
ages, when  imported  in  packages.     Thus,  the  original  package 
first  introduced  in  Brown  v.  Maryland,  in  reference  to  foreign 
importations,  becomes  material  in  interstate  commerce  in  lim- 
iting the  police  power  of   the  state.     An  original   package  in 
interstate  commerce  means  the  box  or  case  in  which  the  goods 
were  shipped,  and  not  the  package  in  which  they  were  placed 
by  the  manufacturer  when  manufactured  and  before  they  were 
placed  in   the  larger  boxes  lor  shipment.1     The  importation 
however  must  be  made  in  the  usual  manner  prevalent  among 
honest  dealers,  and  in  a  honafidi  package  usual  for  shipment.2 
The  original  package  rule  was  one  of  convenience,  is  not  de- 
fined in  any  statute  of  the  United  States,  and  is  of  course  only 
applicable  where   property  is  imported    in  packages.     As  to 
other  property,  such  as  livestock,  the  commercial  transit  ends 
when  it  is  delivered  to  the  consignee.     Thus  a  flock  of  sheep 
driven  through  a  state  is  a  subject  of  interstate  commerce  and 
protected  by  the  federal  power  against  state  taxation,  although 
the  sheep  were  permitted  to  graze  during  their  journey.3  Prop- 
erty in  commercial  transit,  however  transported,    through  a 
state  or  into  a  state,  is  not  subject  to  the  taxing  power  of  a 
state,  and  this  immunity  extends  until  the  termination  of  the 
shipment  by  the  delivery  to   the  consignee.4     Goods,  to  be  ex- 
empt, however,  must  be  actually  in  commercial  transit,  that  is, 
the  transit  must  have  commenced   by  the  delivery  to  the  car- 
rier for  shipment."'     It  does  not  follow  however  that  this  im- 
munity from  the  state  taxing  power  would   prevent  the  prop- 
ertv  from  being  subject  of  an  illegal  agreement  or  combination 
in  violation  of  the  anti-trust  act  (See  infra,  £  69.)  The  termina- 
tion of  the  transit  means  that  the  property  is  subject  to  taxa- 
tion in  common  with  other  property;  but  it  cannot  be  subjected 
to  any  discriminating  regulations  on  account  of  its  foreign 
<>]  igin. 

i  May  v.  New  Orleans.  178  U.  S.  4%  3Kelley  v. Rhoacles  Diamond  Match 

(1900  .  44  L.  E.J.  1165,  affirming  51  La.  Co.  v.  Ontonogon,  188  U.  S.  82  (1903), 

Ann.    1064,  four    justices  dissenting;  47  L.  Ed.  394,  188  U.  S.  1  (1903),  47  L. 

Schollenberger  v.  Pennsylvania,  171  Ed.  394 

r.  >.  |     1898),  13  I,.  Ed.  19.  ■'Knocks    v.    Iowa,    170  U.   S.   412 

-Austin  v.  Tennessee,  179  U.  S.  343  (1898),  12  L.  Ed.  1088. 

(1000,.  4J  L.  Ed.  224.     See  also  Cook  ^Coe  v.  Errol,  116  U.  S.  ."317  (1886), 

uinty  "t  Marshall,  supra.  29  L.  Ed.  715, 


§  18.]    INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.       27 

§  17.  The  Wilson  bill  of  1890. —  The  judicial  application 
of  the  original  package  rule  in  interstate  commerce  to  the 
police  power  of  the  state  and  the  consequent  inability  of  the 
state  to  exclude  the  importation  of  liquors  resulted  in  the  pas- 
sage by  congress  in  1890  of  the  so-called  Wilson  bill,1 — -pro- 
viding that  liquors  transported  into  any  state  or  territory 
should,  upon  arriving  in  such  state  or  territory,  be  subject  to 
the  operation  and  effect  of  its  laws  enacted  in  the  exercise  of 
its  police  powers  to  the  same  extent  and  in  the  same  manner 
as  though  such  liquors  had  been  there  produced,  and  should 
not  be  exempt  therefrom  by  reason  of  being  introduced  in  the 
original  packages  or  otherwise.  This  act  was  in  effect  a  pro- 
hibition by  congress  through  state  action  of  interstate  liquor 
traffic.  Its  constitutionality  was  contested  on  the  ground  that 
congress  could  not  delegate  its  control  over  interstate  com- 
merce to  the  states.  It  was  sustained,  however,  by  the  Supreme 
Court.2  The  court  said  that  in  surrendering  their  own  power 
over  interstate  commerce  the  states  did  not  secure  absolute 
freedom  in  such  commerce,  but  only  the  protection  from  en- 
croachment afforded  by  conforming  its  execution  to  congress. 
The  term  "arrival"  in  this  statute,  it  was  held  in  a  later  case, 
means  the  completion  of  the  shipment  by  delivery  to  the  con- 
signee in  the  state,  and  not  the  arrival  at  the  station.3  (See 
§  52,  infra). 

§  18  A  state  cannot  tax  interstate  commerce. — Although 
the  necessitv  for  the  regulation  of  commerce  was  the  great 
moving  force  in  the  adoption  of  the  constitution,  and  was 
thoroughly  discussed  in  the  proceedings  of  the  convention  and 
in  the  Federalist,  there  is  in  neither  any  reference  to  any  pos- 
sible interference  with  the  taxing  power  of  the  state  growing 
out  of  such  regulation.  The  law  of  federal  restraints  upon 
state  taxation  has  been  developed  upon  the  fundamental  prin- 
ciple of  the  supremacy  of  the  federal  authority.  The  exemp- 
tion from  state  taxation  of  the  means  employed  by  the  federal 

1  Act  of  August,  1890,  and  26  Stats,  1902,  in  making  effective  state  laws- 

313    c.    728.       The    same    principle  as  to  '•oleomargarine,"  "  butterine " 

was  also  applied  in  1900,  in  making  and  other  imitations  of  butter, 
effective  the  game  laws  of  the  states.         -In  Rahrer,  140  U.  S.  545  (1891),  35 

Act  of   May   25,  1900,  3  Com  p.  Stats.  L.  Ed.  572. 
U.  S.  p.  3181,  and   in  Act  of   May  9,         3  Rhodes  v.  Iowa,  supra. 


2S       INTERSTATE    COMMEECE    UNDER    FEDERAL    CONSTITUTION.    [§19. 

government  for  carrying  on  its  functions  was  first  declared  in 
L819,  in  McCullocb  v.  Maryland,1  and  the  principle  was  later 
extended  in  ls_7,  in  Brown  v.  Man-land,-  to  the  limitation  of 
the  state  taxing  authority  by  reason  of  the  national  control 
over  foreign  commerce. 

Under  the  rule  declared  by  the  Supreme  Court  for  the  first 
time  in  LS86,3  which  has  since  been  consistently  adhered  to  by 
the  court,  the  business  of  carrying  on  interstate  commerce 
cannot  be  taxed  at  all,  and  as  the  right  to  bring  goods 
from  other  states  includes  the  right  to  sell  them  and  to  solicit 
sales  therefor,  as  well  as  to  deliver  the  property  sold,  the  state 
cannot  tax  the  right  to  sell  ordeliver,  or  to  solicit  sales,  whether 
in  the  form  of  license  tax  or  otherwise.  It  is  immaterial  that 
the  tax  is  without  discrimination,  as  between  domestic  and  for- 
eign drummers,  as  interstate  commerce  cannot  be  taxed  at  al!.4 

§  19.  J>ut  a  state  can  tax  the  property  employed  in  inter- 
state commerce. —  While  a  state  cannot  tax  interstate  com- 
merce,  that  is,  the  privilege  of  carrying  on  such  commerce,  it 
can  tax  the  property  in  its  jurisdiction  employed  in  carrying 
on  such  commerce.  The  difficulty  of  defining  the  line  where 
the  state  and  federal  powers  meet  in  such  cases  is  illustrated 
by  the  not  infrequent  dissents  of  members  of  the  supreme 
court  in  cases  involving  these  questions  of  conflict  between  the 
state  and  federal  power.5  Xo  question  is  made  as  to  the  power 
of  a  state  to  tax  the  tangible  property  within  its  jurisdiction 
of  a  railroad,  telegraph  or  other  company  engaged  in  inter- 
state commerce,  but  the  difficulty  has  been  found  m  determin- 
ing what  portion  of  the  intangible  property  of  such  corpora- 
can  be  located  within  a  state  so  as  to  be  subject  to  its 
taxing  power.  Thus,  has  been  formulated  the  so-called  "unit 
rule"  whereunder  the  entire  value  of  an  interstate  railroad, 
tangible  as   well   as  intangible,  may   be  apportioned  upon  a 

iSupra,  U.  S.  27  (1902),  46  L.  Ed.   785;  Cald- 

2 Supra,  §  Hi.  well  v.    North   Car..    1ST   U.    S.    622 

Bobbins  v.  Shelby  County  Taxing  (1902),    17  I,  Ed.  336;  N.  &  W.  R.  R. 

District,  L20  U.  8.  189  (1887),30  LEd.  Co.  v.  Sims.  191  U.  S.  411  (1902),  48 

694,  L.  Ed.  254. 

•Asher   v.   Texas,    128    CJ.    S.   129  5  Erie  R.  Co.  v.  Pennsylvania,  158  U. 

32    L,    Ed.    368;   Brennan  v.  S.    431    I.e.    437,    (1895),   39    L.    Ed. 

Titusville,  153    U.    s.   289,   (1894).  38  1043. 
L   Ed.  Tl'.i:  Stockard  v.   Morgan,  185 


§  20.]    INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION. 


2U 


mileage  basis  as  a  means,  prima  facie,  of  arriving  at  the  value 
of  the  property  within  the  state,  that  is,  the  state's  proportion- 
ate part  of  the  value  of  the  entire  property.1 

The  rule  of  the  "average  habitual  use"  has  also  been  form- 
ulated in  the  taxation  of  railroad  cars,  so  that  a  state  may  tax 
its  proportionate  part  of  the  property  actually  employed  in  ita 
jurisdiction.2 

Thus,  also,  while  the  receipts  from  interstate  commerce  can- 
not be  taxed  as  such,  the  tax  may  be  levied  upon  the  corpora- 
tion, as  an  excise  or  franchise  tax,  which  may  be  apportioned 
on  the  basis  of  the  proportion  of  the  mileage  within  the  state 
to  the  total  mileage.3 

These  rules,  however,  are  only  admissible  in  determining  the 
actual  value  of  the  property  in  the  state  for  the  purpose  of 
taxation,  and  will  not  authorize  the  taxing  by  a  state  of  the 
privilege  of  carrying  on  interstate  commerce  among  the  states, 
nor  the  taxation  of  property  permanently  outside  of  its  jurisdic- 
tion.4 

i'20.  State  power  of  taxation  of  corporations  engaged  in 
interstate  commerce  summarized. — In  a  recent  case  '  the  Su- 
preme Court,  in  holding  that  a  city  could  recover  from  an  inter- 


1  State  Railroad  Tax  Cases,  92  IT.  S. 
575  (1875),  23  L.  Ed.  663;  Kentucky 
Railroad  Tax  Cases,  115  U.  S.  321 
(1885),  29  L.  Ed.  414;  Pittsburgh  etc. 
R.  Co.  v.  Backus.  154  U.  S.  421  (1894), 
38  L.  Ed.  1031;  C.  C.  C.  &  St.  L.  R. 
Co.  v.  Backus,  154  U.  S.  439  (1894),  38 
L.  Ed.  1041;  Western  Union  Tel.  Co. 
v.  Massachusetts,  125  U.  S.  530  (1888), 
31  L.  Ed.  790:  Massachusetts  v.  Tele- 
graph Co.,  141  U.  S.  40  (1891),  35  L. 
Eel.  628;  Western  Union  Tel.  Co.  v. 
Taggard,  163  U.  S.  1  (1896),  41  L.  Ed. 
49;  Adams  v.  Ohio,  165  U.  S.  194 
(1897),  41  L.  Ed.  683;  Adams  Express 
Co.  v.  Kentucky,  166  U.  S.  171  (1897), 
41  L.  Ed.  960;  Henderson  Bridge  Co. 
v.  Kentucky,  166  U.  S.  15(1  (1897),  41 
L.  Ed.  953.  W.  U.  Tel.  Co.  v.  Gott- 
lieb, 190  U.  S.  412  (1903),  47  L.  Ed.  1110. 

2  Pullman  Palace  Car  Co.  v.  Penn- 
sylvania, 141  U.  S.  18  (1891).  35  L.  Ed. 
613:  Marye  v.  B.  &  O.  R.  Co.,  127  U. 


S.  117  (1888),  32  L.  Ed.  94;  American 
Refrigerator  Transit  Co.  v.  Hall.  174 
U.  S.  70  (1899).  43  L.  Ed.  899:  Union 
Refrigerator  Transit  Co.  v.  Lynch, 
177  U.  S.  149  (1900),  44  L.  Ed.  708: 
Wisconsin  &  M.  R.  Co.  v.  Powers,  191 
US.  379(1903),  48  L.  Ed.  229. 

-The  State  Freight  Tax  Cases,  15 
Wall  232  (1872),  21  L.  Ed.  146;  Maine 
v.  Grand  Tr.unk  R.  Co.,  142  U.  S.  217 
(ls9  0,  35  L.  Ed.  994.  Four  judges 
dissenting. 

*  Fargo  v.  Hart,  193  U  S.  490  (1904), 
4S  L.  Ed.  761.  For  consillei-ation  of 
the  many  questions  arising  in  the 
adjustment  of  the  taxing  power  of 
the  state  to  the  paramount  authority 
of  congress  in  interstate  commerce, 
see  author's  "  Power  of  Taxation," 
chapters.  Ill  and  VIII. 

s  Atlantic,  etc.  Tel.  Co.  v.  Philadel- 
phia, 190  U.  S.  160  (1896).  47  L.  Ed. 
995. 


30      INTERSTATE    COMMERCE    UNDER    FEDERAL    CONSTITUTION.    [§  20. 

state  telegraph  company  a  reasonable  license  fee  for  the  occu- 
pation of  its  streets  by  telegraph  poles,  subject  however  to  the 
determination  by  a  jury  of  the  reasonableness  of  the  charge, 
said  that  there  were  few  questions  more  important  or  more 
embarrassing  than  those  arising  from  the  efforts  of  the  states 
or  municipalities  to  increase  their  revenues  by  collections  from 
corporations  engaged  in  interstate  commerce,  but  that  the  fol- 
lowing propositions  had  been  so  often  adjudicated  as  to  be  no 
longer    open  to  discussion:     First.     The  constitution  of  the 
United  States  having  given  to  congress  the  power  to  regulate 
commerce  not  only  with  foreign  nations  but  among  the  sev- 
eral states,  that  power  is  necessarily  exclusive  whenever  the 
subjects  of  it  are  national  in  their  character  or  admit  of  only 
one  uniform  system  or  plan  of  regulation.     Second.  Xo  state 
can  compel  a  party,  individual  or  corporation,  to  pay  for  the 
privilege  of  engaging  in   interstate  commerce.1    Third.  This 
immunity  does  not  prevent  a  state  from  imposing  ordinary 
property  taxes  upon  property  having  a  situs  in  its  territory 
and  employed  in  interstate  commerce.     Fourth.  The  franchise 
of  a  corporation,  although  that  franchise  is  the  business  of  in- 
t  srstate    commerce,    is,    as   a    part    of   its    property,  subject 
to  state  taxation,  provided  the  franchise  is  not  derived  from 
the  United  States.     Fifth.     No  corporation,  even  though  en- 
gaged in  interstate  commerce,  can  appropriate  to  its  own  use 
property,  public  or  private,  without  liability  to  charge  there- 
for. 

i  The  soliciting  of  traffic  for  an  in-  the    states,  and   not   merely  as    an 

terstate   railroad    is    exempt    from  attempted  regulation  of   commerce 

taxation.     McCall  v.  Cat,  13G  U.  S.  among   the  states.     The  opinion  of 

L890),  34    1-    Ed.   891.      In    1888  Justice  Miller   quotes  from   the  dis- 

before  the  adoption  of  the  fourteenth  senting  opinion    of    Chief    Justice 

amendment  it  was  held   in  Crandall  Taney  of  the  Passenger  Cases,  infra, 

v.  Nevada,  6  Wall.  35,  18  L.   Ed.  745.  i=    21,   where    he   concedes  that  the 

that  a  state  tax  upon  through  pas-  state    tax     inposed     on     foreigners 

sengers   was    void     as  inconsistent  would  be  invalid,  if  imposed  on  citi- 

u-iih  the    rights  of   citizens  of  the  zens. 
I  nited  States,  in  free  travel  through 


CHAPTER  II. 

THE  CONCURRENT  AND  EXCLUSIVE  POWERS. 

§  21.  The  concurrent  and  exclusive  powers  distinguished.. 31 

22.  The  supreme  court  on  the  three  classes  of  commerce  cases 32 

23.  The  concurrent  state  power. :;:; 

24.  The  state  power  as  to  interstate  telegraph  companies 34 

25.  Concurrent  power  in  interstate  railroad  transportation 35 

26.  State  Sunday  laws  and  interstate  traffic 36 

27.  State  laws  as  to  qualifications  of  employees  and  safety  of  public  36 

28.  State  laws  concerning  separation  of  races  in  interstate  traffic. .  .  37 

29.  Limitation  of  state  power  in  stoppage  of  through  trains 37 

30.  State  regulation  of  contractual  relations  of  interstate  railroad 

and  shippers 38 

31.  State  regulation  under  rules  of  common  law  in  state  courts 39 

32.  The  concurrent  jurisdiction  in  live  stock  inspection  laws 40 

33.  Effect  of   congressional   legislation  upon  concurrent  power   of 

state  ■ 40 

34.  State  quarantine  laws  . . 41 

35.  Freedom  of  interstate  commerce 42 

36.  Congressional  inaction  in  foreign  and  interstate  commerce  dis- 

tinguished     45 

37.  Attachment  of  foreign  railroad  cars 45 

38.  Rulings  of  the  state  courts  on  the  commerce  clause 46 

§  21.  The  concurrent  and  exclusive  powers  distinguished. 

The  supremacy  of  the  federal  power  in  interstate  commerce 
was  declared  in  1821,  in  Gibbons  v.  Ogden  {supra,  §  5),  in  a  case 
wherein  congress  had  exercised  its  power  by  authorizing  the 
granting  of  coasting  licenses,  and  the  decision  of  the  court 
therefore  was  based  upon  the  claim  of  an  exclusive  grant 
by  the  state  as  against  this  right,  under  authority  of  congress, 
in  the  navigation  of  the  public  waters  of  the  state.  The  ques- 
tion of  the  power  of  the  state  to  legislate  affecting  interstate 
commerce,  when  congress  had  not  legislated  upon  the  subject, 
was  not  directly  involved  or  decided;  and  this  remained  a 
vexata  qumtio,  and  widely  different  views  were  expressed  by 
members  of  the  court,  until  a  definite  rule  was  declared  in 
1S51.1     Thus  it  was  contended  on  the  one  hand  that  the  power 

i  Wilson     v.     Black    Bird     Creek  Cases,  5   How.  504   (1847),  12   L.Ed. 

Marsh  Co.,  2  Peters.  245    (1829),  7  L.  256:    Passenger    Cases,   7  How.    283 

Ed.  412;  New  York  v.  Miln,  11  Peters.  (1849).  12  L.  Ed.  702. 
102  (1837),    9  L.    Ed.    648;    License. 


32  CONCURRENT    AND    EXCLUSIVE    POWERS.  .'    22. 

to  regulate  interstate  commerce  was  itself  a  unit,  and  the  grant 
to  congress  was  necessarily  exclusive,  and  no  part  of  this  regula- 
tion could  be  exercised  by  a  state;  and  on  the  other  hand  that 
_rant  to  congress  was  not  itself  a  prohibition  to  the  states, 
and  that  this  authority  of  the  states  in  the  exercise  of  their 
sovereign  police  powers  was  complete  and  exclusive.1 

uncertainty  produced  by  these  differing  opinions  was 
shown  in  sustaining  a  New  York  statute  -  requiring  masters  of 
iger  vessels  to  report  to  the  state  authorities  as  to  arriv- 
ing passengers;  while  a  few  years  later  statutes  of  Xew  \  ork 
and  Massachusetts  imposing  a  tax  upon  passengers  arriving 
from  other  states  or  foreign  countries,  for  defraying  expenses 
of  police  laws  excluding  paupers  and  convicts,  the  surplus  to 
b.'  applied  to  state  purposes,  were  held  void.3 

In  LS4:6  the  laws  of  certain  of  the  New  England  states,  pro- 
hibiting or  restraining  the  introduction  of  spirituous  liquors 
were  sustained,  all  the  six  judges  filing  opinions,4  and  concurring 
in  the  judgment,  though  on  different  grounds. 

Finally,  in  1851,  the  rule  was  declared,  which  has  been  the 
basis  of  subsequent  adjudications,5  that  the  power  to  regulate 
commerce  is  one  which  includes  many  subjects,  various  and 
quite  unlike  in  their  nature,  and  that  whenever  these  subjects 
are  in  their  nature  national,  or  admit  only  of  one  uniform 
mi  or  plan  of  regulation,  they  may  be  justly  held  to  belong- 
to  that  class  over  which  congress  has  exclusive  power  of  regula- 
tion; but  that  local  and  limited  matters,  not  national  in  their 
nature,  may  be  regulated  by  the  states  during  the  non-action 
of  congress.  The  action  of  congress  however  renders  void 
such  regulations  of  the  states  as  conflict  with  it.6 

22.  The  supremo  court  on  the  three  classes  of  com- 
merce cast's.—  The  supreme  court  in  denying  the  power  of  a 

nions  in  the  Passenger  and  ''The  rule  has  been  stated  in  subse- 

Lic                           .,.„.  quent  opinions  without  the  qualifica- 

.  Miln,  supra.  tion  of    the  word  "only."  so   as  to 

»  Passenger  cases,  supra,  four  jus-  read  "  admit  of  one  uniform  sj 

tic(  or  plan  of   regulation."      See    state 

s,    supra.     This  de-  Freight  Tax,  15  Wall.  243,  21  L.  Ed. 

|   in   1890:    Leisy  146;  Welton  v.  Missouri,  91  U.  S.  1.  c. 

v.  Harding,  supra,  £  L6.  280    1875),  23  I..  Ed.  349;    Henderson 

of    Wardens,  12  v.  Mayor,  93  U.  S.  1.  c.  2:.'>  (1875),  23 

1851),  13  L.  Ed.  996.  L.  Ed.  823. 


§  23.]  CONCURRENT    AND    EXCLUSIVE    POWERS.  33 

state  to  regulate  tolls  upon  an  interstate  bridge  without  the 
assent  of  congress,  reviewed  its  decisions  upon  the  construction 
and  application  of  the  commerce  clause  of  the  constitution,  and 
said  they  were  divisible  into  three  distinct  classes.1  The  first, 
where  the  power  of  the  state  was  exclusive,  including  the  con- 
struction of  highways,  turnpikes,  railroads  and  canals,  between 
points  in  the  same  state,  and  their  regulation  for  public- 
use,  the  operating  of  bridges  over  navigable  streams  and  regu- 
lating navigation  over  internal  waters  which  did  not  by  them- 
selves or  in  connection  with  other  waters  form  a  continuous 
highway  for  interstate  or  foreign  commerce.  In  the  second 
class  were  included  the  cases  of  concurrent  jurisdiction  of  the 
states,  and  wherein  it  is  not  the  existence,  but  the  exercise  of 
the  power  of  congress  which  is  incompatible  with  the  exercise 
of  the  same  power  by  the  states.  In  the  third  class  the 
court  included  those  cases  where  the  power  of  congress  was 
exclusive,  and  it  was  not  the  exercise  but  the  existence  of  the 
power  in  congress  which  excluded  the  power  of  the  state.  The 
first  class  requires  no  distinct  consideration.  The  dividing  line 
between  the  second  and  third  class  has,  however,  been  ques- 
tioned in  a  number  of  cases,  as  will  be  seen  in  the  succeeding 
sections. 

§  23.  The  concurrent  state  power. —  The  concurrent  juris- 
diction of  the  states,  as  it  is  called,  may  be  exercised  in  the 
second  of  the  classes  of  cases  mentioned  in  the  preceding  sec- 
tion, where  it  is  not  the  existence  but  the  exercise  of  the  power 
of  congress  which  is  incompatible  with  the  exercise  of  the  state 
power. 

Thus,  the  regulation  of  pilots  has  an  intimate  connection  with 
commerce,  and  discriminating  state  laws  might  be  enacted  on 
the  subject,  yet  the  nature  of  the  power  is  such  that  it  is  likely 
to  be  best  provided  for  by  the  legislative  discretion  of  the  sev- 
eral states,  adapted  to  local  needs.2 

In  this  essentially  local  class  are  the  state  inspection  laws,3 
state  quarantine  laws,4  and  laws  regulating  the  improvement 
of  navigable  waters  within  the  jurisdiction   of  a  state,  or  the 

1  Covington,  etc.  Bridge  Co.  v.  Ken-        3  See  £  9,  supra. 

tucky,  154  U.  S.  204  (1894),  38  L.  Ed.  *  Steamship  Co.  v.  Louisiana,  118 
962.  U.  S.  455  (1886),  30  L.  Ed.  237.    Infra, 

2  Cooley  v.  Port  Wardens,  supra.     §  34. 

3 


34  CONCURRENT    AND    EXCLUSIVE    POWERS.  [§  2i. 

use  of  bridges  over  such  waters  which  have  been  sustained.  In 
the  Mobile  harbor  case  cited,1  the  court  said  that  perhaps  some  of 
the  divergent  views  noticed  upon  this  question  of  state  power 
amon<*  former  judges,  may  have  arisen  from  not  always  bear- 
ing m  mind  the  distinction  between  commerce  as  strictly  de- 
lined  and  its  looal  aids  or  instrumentalities,  or  measures  taken 
for  its  improvement.  In  the  Chicago  case-  the  court  sustained 
the  state  control  of  the  construction,  repair  and  regulation,  and 
use  of  the  bridges  over  the  Chicago  river,  saying  that  until 
congress  acted,  the  power  of  the  state  over  the  bridges  was 
plenary. 

In  the  same  class  are  state  laws  regulating  wharves,  piers 
and  docks,3  the  construction  of  bridges,4  and  establishing  ferries 
over  navigable  rivers  within  state  jurisdiction.  Local  regula- 
tions, however,  cannot  impose  a  tax  or  charge  upon  interstate 
commerce.  Thus,  while  a  state  can  exact  a  toll  or  compensa- 
tion for  a  specific  improvement  of  a  navigable  water  within  its 
jurisdiction,5  it  cannot  exact  a  license  for  the  use  of  navigable 
waters,  which  is  not  a  charge  for  any  specific  improvement.6 

§  >4.  The  state  power  as  to  interstate  telegraph  compa- 
nies.—  A  telegraph  company  doing  an  interstate  business  is 
engaged  in  interstate  commerce,  and  is  recognized  by  act  of 
ci  .nirress.7  It  cannot,  therefore,  be  excluded  by  a  state,  nor  can 
its  interstate  messages  be  taxed  by  the  state.8  The  state  may, 
however,  make  regulations  with  respect  to  building  poles,  lo- 
cation of  wires,  and  all  necessary  appliances,  which  the  con- 
venience of  the  community  may  require.  It  can  tax  intra 
state  messages,  and  municipalities  may  charge  a  reasonable 
rental  for  occupation  of  streets   with  poles.9     The  state  can 

i  County  of  Mobile  v.  Kimball,  102  5  Huse    v.    Glover,    119    U.   S.  543 

Q.  S.  691  (1880).  26  L.  Ed.  238.  (1886).  30  L.  Ed.  48T;  Sands  v.  Manis- 

*  Escanaba  Co.  v.  Chicago,  107  IT.  S.  tee  River  Imp.  Co.,  123  U.  S.  2S8  (1887), 

678    1882),  27  L.  Ed.  442.  31  L.  Ed.  149. 

3  Packet  Co.  v.  Aiken,  121  U.  S.  444  6  Harraan  v.  Chicago,  147  U.  S.  396 

.  30  L.  Ed.  976.  (1^93).  37  L.  Ed.  216. 

*Card\vell  v.  Am.  Bridge  Co..  113  '  Act  of  July  24,  1866,  Comp.  Stats. 

U.  S.  205  (1885),  28  L.  Ed.  959.     As  to  5263;  Pensacola  Tel.  Co.  v.  W.  U.  Tel. 

interstate    bridges  and   ferries  and  Co..  supra. 

cited,  see  Gloucester  Ferry  Co.  *  Telegraph  Co.  v.  Texas.  105  U.  S. 

,   1 1  i    I  r.  8.   196    1885  .  29  L.  Ed.  460  1 1881),  20  L.  Ed.  1067. 

158;    St.  Clair  County  v.    Interstate  ;'  Telegraph  Co.  v.  Philadelphia,  190 

Sand  &  I  !ar  Transfer  Co.,  192  I'.  S.  U.  S.  160  (1903),  47  L.  Ed.  995. 
L904),  18  1..  Ed.  518. 


§  25.]  CONCURKENT    AND    EXCLUSIVE    POWERS.  35 

prescribe  how  messages  shall  be  delivered  within  the  state, 
whether  received  from  within  or  without  the  state,1  as  this  is 
the  exercise  ol!  the  police  authority  of  the  state  in  its  jurisdic- 
tion; but  on  the  contrary,  the  state  cann_>t  prescribe  how  mes- 
sages received  within,  but  delivered  without  the  state,  shall  be 
delivered.2 

§  25.  Concurrent  powers  in  interstate  railroad  trans- 
portation.—  ISTot  only  is  the  rule  established  that  the  state,  in 
the  absence  of  congressional  action,  may  regulate  local  mat- 
ters which  relate  to  interstate  or  foreign  commerce,  but  the 
state  power  of  regulation  has  been  further  extended  and  held 
to  include  a  wide  field  in  the  exercise  of  its  lawful  power  over 
the  relations  of  persons  and  property  in  its  jurisdiction.  The 
federal  power  of  regulation  may  be  exercised  without  legislation, 
as  well  as  with  it,  and  by  inaction,  congress  in  effect  adopts 
the  local  law.  State  laws  regulating  the  relative  rights  and 
duties  of  persons  within  the  jurisdiction  of  the  state  are  there- 
fore effective  upon  interstate  carriers.5  The  court  said  in  the 
case  cited  that  it  is  to  this  law  that  persons  within  the  scope 
of  its  operation  look  for  the  definition  of  their  rights  and  for 
the  redress  of  wrongs.  "  The  failure  of  congress  can  be  con- 
strued only  as  an  intention  not  to  disturb  what  exists,  and  is 
the  mode  by  which  it  adopts,  for  cases  within  its  power,  the 
rule  of  the  state  law,  which,  until  displaced,  covers  the  sub- 
ject."4 

The  effect  of  the  enactment  of  congress  upon  the  police  power 
of  the  state  is  illustrated  by  the  ruling  of  the  Supreme  Court 
prior  to  the  enactment  of  the  interstate  commerce  act,5  holding 
valid  a  statute  of  Iowa  requiring  each  railroad  company  annu- 
ally, in  the  month  of  September,  to  establish  passenger  and 
freight  rates,  and  on  the  first  day  of  October  following  to  put 
up  at  all  the  stations  on  its  road  a  printed  copy  of  such  rates 
and  cause  it  to  remain  posted  during  the  year,  notwithstand- 
ing the  act  of  congress  of  1866 6  authorizing  the  interstate  car- 

i  W.  U.  Tel.  Co.  v.  James,  162  U.  S.  99  (1876)  23  L.  Ed.  819;  Chicago,  etc.  R. 

650  (1896).  40  L.  Ed.  1105.  Co.  v.  Solan.  169  U.  S.  133  (1898),  42 

-'  W.  U.  Tel.  Co.  v.  Pendleton,  122  L.  Ed.  688. 

U.  S.  347  (1887),  30  L.  Ed.  1187.  5  Railroad  Co  v.  Fuller,   17  Wall. 

3  Smith  v.  Alabama,  124  U.  S.  465,  560  (1873),  21  L.  Ed.  710. 

-31  L.  Ed.  508.  ''Infra,  §  40. 

« Sherlock  et  al  v.  Ailing,  93  U.  S. 


30  CONCURRENT    AND    EXCLUSIVE    POWERS.  [§§  '20,  27.. 

riage  of  freight.  The  state  statute  was  held  to  be  simply  a  po- 
lice regulation,  and  that  even  though  it  did  effect  commerce, 
the  question  would  arise  whether  it  did  not  fall  within  that 
class  of  cases  where  state  legislation  was  sustained  in  the  ab- 
sence of  congressional  legislation.  A  similar  statute  came 
before  the  court  from  Texas  after  the  passage  of  the  interstate 
commerce  act,  although  the  statute  had  been  enacted  before.1 
The  court  said  that  the  state  law  and  the  national  law  operated 
upon  the  same  subjectmatter  and  prescribed  different  rules, 
and  that  the  state  statute  must  therefore  give  way. 

§  26.  State  Sunday  laws  and  interstate  transporation. — 
Included  in  this  range  of  the  concurrent  state  power  regulat- 
ing persons  within  the  jurisdiction  and  affecting  interstate  com- 
merce are  Sunday  laws,  prohibiting  the  running  of  freight 
trains  on  Sunday.-'  The  court  said  such  a  law  merely  estab- 
lished a  rule  of  civil  conduct  applicable  to  all  freight  trains, 
domestic  as  well  as  interstate,  and  to  all  similar  traffic. 

The  court  in  this  case  sustained  a  Georgia  statute  and  quoted 
from  the  opinion  of  the  supreme  court  of  that  state  which  said 
that  the  legislature  had  the  right  to  enforce  a  day  of  rest  as  a 
civil  duty,  although  men  might  differ  as  to  the  religious  duty. 

^  '27.  State  laws  as  to  qualifications  of  employees  and 
safety  of  the  public. —  The  principle  has  been  extended  to  in- 
clude laws  which  establish  a  standard  of  qualifications  for  rail- 
road employees3  on  interstate  as  well  as  local  trains,  for  example, 
color  blindness  of  engineers.  The  court  said  in  the  latter  case 
that  it  was  a  principle  fully  recognized  that  wherever  there  is 
d  inger  to  the  public  in  the  conduct  of  a  business,  it  was  not 
only  within  the  power,  but  the  plain  duty  of  a  state  to  make 
provision  against  accidents  likely  to  follow.  State  laws  requir- 
ing  the  heating  of  passenger  cars,  requiring  guard  posts  on  rail- 
road bridges  and  trestles,4  the  protection  of  surface  crossings 
in  cities,  and  the  regulation  of  speed  in  municipal  limits,5  are 
sustained  upon  the  same  principle.     The  court  said  that  trav- 

i  Gulf.  Colo.  etc.  R.  Co.  v.  Helfley,  R.  Co.  v.  Alabama,  128  U.  S.  96  (1888). 

158  !'.  S.  98  (1895),  39  !..  Ed.  910.  32  L.  Ed.  35a 

-  Bennington  v.  Georgia,  163  U.  S.  *N.  Y.,  N.  H.  &  H.  R.  Co.  v.  New 

Fuller.  C.  J.  and  White,  York,  165  U.   S.  628  (1897),  41  L.  Ed. 

J.,  dissenting),  41  L.  Ed.  166.  853. 

'Smith  v.  Alabama,  124   U.  S.  465  5  Erb  v.    Morasch,    177   U.   S.  584 

L.  Ed.  508;  Nashville,  etc.  (1900),  44  L.  Ed.  897. 


§§   28,29.]  QONCUKEENT    AND    EXCLUSIVE    POWERS.  37 

elers  on  interstate  trains  are  as  much  entitled,  while  within  a 
state,  to  the  protection  of  that  state  as  those  who  travel  on  do- 
mestic trains. 

Congress  has  also  enacted  legislation,  as  will  be  seen  here- 
after, for  the  safety  of  employees  and  the  prevention  of  acci- 
dents in  interstate  commerce.  These  acts,  as  the  Accident  Act, 
infra,  §  373,  and  the  Safety  Act,  infra,  §  354,  are  by  their  terms 
applicable  to  all  railroads  engaged  in  interstate  commerce. 
From  the  nature  of  the  subject  it  is  difficult  to  say  when  the 
enactment  of  such  legislation  by  congress  so  covers  the  ground 
as  to  make  inoperative  state  legislation  bearing  upon  the  same 
subject.  Under  the  ruling  laid  down  by  the  supreme  court  in 
the  live  stock  cases  (see  infra,  %  33),  the  state  statute  enacted 
for  the  protection  of  employees  and  travelers  within  its  juris- 
diction, must  be  taken  as  valid,  unless  the  same  subject  is  taken 
under  direct  national  supervision  in  the  exercise  of  the  lawful 
power  of  congress  over  interstate  commerce. 

§  28.  State  laws  concerning  separation  of  races  in  inter- 
state traffic. — ■  A  state  can  regulate  the  separation  of  races  in 
railroad  transportation  on  trains  within  the  state,1  but  it  cannot 
determine  whether  interstate  passengers  shall  be  compelled  to 
share  their  cabin  accommodations,  as  that  is  a  question  of  in- 
terstate commerce  to  be  determined  by  congress  alone.  A  stat- 
ute of  Louisiana  enacted  in  1869,  prohibiting  discrimination  on 
account  of  race,  was  held  inapplicable  to  a  Mississippi  steam- 
boat engaged  in  commerce  between  the  states;2  while  the  state 
laws  providing  for  separate  cars  within  the  state,  were  sus- 
tained. 

§29.  Limitation  of  state  power  in  stoppage  of  through 
trains. —  The  limitation  of  the  state's  power  of  regulation  in 
relation  to  interstate  commerce  is  illustrated  by  the  rulings  of 
the  supreme  court  upon  state  laws  requiring  the  stoppage  of 
trains  at  certain  stations. 

A  statute  of  Minnesota  requiring  every  railroad  company 
to  stop  all  regular  trains  at  county  seats,  but  providing  that  it 
should  not  apply  to  other  railroad  trains  entering  the  state 

1L,  N.  O.  &T.  R.  Co.  v.  Mississippi,  tucky,  179  U.  S.  388,  45  L.   Ed.  244; 

133  U.  S.  587)1890),  33L.  Ed.  784,distin-  Plessy  v.  Ferguson,  163  U.  S.  537  (1896), 

guishing  Hall  v.  De  Cuir,  95  U.  S.  4S5,  41  L.  Ed.  256. 

24  L.  Ed.  547;  C.  &  O.  R.  Co.  v.  Ken-  -'  Hall  v.  De  Cuir,  supra. 


38  CONCURRENT    AND    EXCLUSIVE    POWERS.  [§  30. 

from  another  state,  or  to  transcontinental  trains  from  another 
state,  was  sustained  as  to  a  train  connecting  with  an  interstate 
train  and  carrying  mails  and  some  interstate  passengers  for 
that  train.1  This  case,  however,  was  decided  upon  its  special 
facts,  as  the  train  was  run  wholly  within  the  state.  A  statute 
of  Illinois  was  held  invalid  which  required  all  regular  passen- 
ger trains  to  stop  a  sufficient  length  of  time  at  county  seats  to 
receive  and  let  off  passengers  with  safety,  as  a  direct  inter- 
ference with  interstate  traffic.  This  statute  was  held  invalid 
both  as  to  a  county  seat  station  which  was  three  and  one-half 
miles  from  the  direct  road-  and  also  as  to  a  county  seat  sta- 
tion which  was  on  the  direct  line.3  In  the  case  last  cited  the 
court  reviewed  the  previous  decisions  and  said  that  none  of 
them  were  opposed  to  the  principle  that,  after  all  local  condi- 
tions had  been  adequately  made,  railways  had  the  legal  right 
to  adopt  special  provisions  for  through  traffic,  and  that  legis- 
lative interference  therewith  was  unreasonable  and  an  in- 
fringement upon  the  constitutional  guaranty  of  the  freedom 
of  interstate  commerce. 

§  30.  State  regulation  of  contractual  relations  of  inter- 
state railroad  and  shippers. —  The  contract  relations  of  inter- 
state railroads  with  their  shippers  must  be  determined,  in  the 
absence  of  congressional  legislation,  by  the  local  law  of  the 
place  where  the  contract  is  made.  IState  statutes  regulating 
the  contractual  relations  and  changing  the  common  law  rules 
controlling  such  relations  are  within  the  scope  of  the  state's 
regulating  power.  Thus,  statutes  permitting  the  carrier  to 
limit  his  common  law  liability  to  a  stipulated  valuation,  regu- 
lating the  effect  of  an  agreement  limiting  liability  to  the  car- 
rier's own  line  in  a  shipment  to  be  made  over  other  lines,  and 
also  prohibiting  contractual  exemption  from  any  common  law 
liability  of  the  carrier,  have  been  sustained.  In  the  Hughes. 
case4  it  was  said  by  the  supreme  court,  in  allowing  a  judg- 
ment against  an  interstate  carrier  in  excess  of  the  amount  lim- 
ited in  the  bill  of  lading  on  the  ground  that  no  federal  right 
was  denied,  that  although  congress  had  made  it  obligatory  to 

K;i;i<lson   v.Minnesota,   16&  U.  S.  3  Cleveland,  etc.  R.  Co.  v.  Illinois,. 

4.-7    l-:.;  .41  L.  Ed.  L064  177  U.  S.  514  (1900),  44  L.  Ed.  868. 

2 Illinois  Central  R.  Co.  v.  Illinois,  *  Pennsylvania-  &•  Co.   v.  Hughes, 

163  U.  B.  142  (1896),  41  L.  Ed.  107.  191  U.  S.  477  (1903),  48  L.  Ed.  268. 


§  31.]  CONCURRENT    AND    EXCLUSIVE    POWERS.  39 

provide  proper  facilities  for  the  interstate  carriage  of  freight 
and  had  prevented  carriers  from  obstructing  continuous  ship- 
ments on  interstate  lines,  there  was  no  sanction  of  agreements 
limiting  liability  by  stipulation,  and  until  congress  had  legis- 
lated upon  it  there  was  no  valid  objection  to  the  states  enforc- 
ing their  own  regulations  upon  the  subject,  although  they  may 
to  that  extent  affect  interstate  contracts  of  carriage.1 

§  31.  State  regulation  under  rules  of  common  law  in 
state  courts. —  It  is  immaterial,  in  this  exercise  of  the  state's 
lawful  power  over  persons  and  property  within  its  jurisdic- 
tion, whether  the  enforcement  by  the  state  of  its  power  in  the 
regulation  of  relative  rights  and  duties  of  persons  and  corpo- 
rations within  its  limits  is  enacted  into  a  statute  or  results 
from  the  rules  of  law  enforced  in  the  state  courts.  The  state, 
said  the  court,  has  a  right  to  promote  the  welfare  and  safety 
of  those  within  its  jurisdiction  by  requiring  carriers  to  be  re- 
sponsible to  the  full  measure  of  the  loss  resulting  from  their 
negligence,  a  contract  to  the  contrary  notwithstanding. 

The  state  regulations  in  all  of  these  cases  were  sustained  upon 
the  theory  that  they  are  not  in  themselves  regulations  of 
interstate  commerce,  though  they  control  in  some  degree 
the  conduct  and  liability  of  those  engaged  in  the  commerce, 
and  as  long  as  congress  had  not  legislated  upon  the  particular 
subject,  they  are  to  be  regarded  as  legislation  in  aid  of  such 
commerce  and  as  a  rightful  exercise  of  the  police  power  of  the 
state  to  regulate  the  relative  rights  and  duties  of  persons  and 
corporations  within  its  limits.- 

This  lawful  exercise  of  the  police  power  of  the  state  over 
persons  and  things  wTithin  its  jurisdiction  is  illustrated  by  the 
rulings  of  the  supreme  court  sustaining  the  power  of  the  state 
to  regulate  the  sale  of  patent  rights,  or  articles  covered  by 
letters-patent  of  the  United  States.  The  court  said  that  con- 
gress never  intended  that  the  patent  laws  should  displace  the 

1  Richmond,  etc.  R.  Co.  v.  Tobacco  maritime  bills  of  lading  andcontrol- 

Co„  169  U.  S.  311  (1898),  42  L.  Ed.  759.  ling    the   insertion    of    stipulations 

While    congress     has    not     legis-  therein    limiting  the   responsibility 

lated  upon  the  forms  of  bills  of  lad-  of  carriers.     See  case  of  The  Dela- 

ing  in  interstate  commerce,  it  has,  ware,  161  U.  S.  471  (1896),  40  L.  Ed. 

by  the  enactment  of  the  Harter  Act,  776. 

U.  S.  Compiled  Statutes,  1901,  p.  2946,  -  Chicago,  M.  &  St.  P.  R.  Co.  v.  So- 
legislated  concerning  the  forms  of  Ian,  169  U.  S.  1:33  (1898),  42  L.Ed.  688. 


40  CONCURRENT    AND    EXCLUSIVE    l'OWEKS.  [§§  32,  33. 

police  powers  of  the  state,  that  is,  those  powers  by  which  the 
health,  good  order,  peace  and  general  welfare  of  the  commu- 
nity are  promoted,  provided  such  laws  do  not  discriminate 
against  non-residents.1 

32.  The  concurrent  jurisdiction  in  live  stock  inspection 
laws. — The  concurrent  jurisdiction  of  the  state  and  federal 
Governments  in  interstate  commerce  is  well  illustrated  in  the 
matter  of  state  laws  regulating  the  exclusion  of  diseased  cat- 
tle. The  daiver  of  the  communication  of  disease  in  driving 
or  otherwise  transporting  cattle  from  state  to  state,  has  been 
recognized  both  in  the  legislation  of  the  western  states  as  well 
as  in  that  of  the  federal  government.  The  right  of  the  state 
to  protect  its  people  and  property  against,  such  dangers  by 
reasonable  enactments,  not  going  beyond  the  necessities  of  the 
case,  has  been  affirmed  in  several  cases,2  but  this  right  of  pro- 
tection against  diseased  cattle  did  not  justify  the  absolute  pro- 
hibition against  certain  cattle  within  certain  seasons.3  The 
right  of  inspection  of  animals  or  of  anything  intended  for 
human  food  brought  into  the  state  from  another  state  is  con- 
ceded, but  such  inspection  must  b3  reasonable,  and  a  state  law 
is  invalid  which  is  burdened  with  such  conditions,  as  would 
prevent  the  introduction  into  the  state  of  sound  meats,  the 
product  of  animals  slaughtered  in  other  states.4  In  this  case  the 
act  required  inspection  twenty-four  hours  before  slaughtering, 
and  this  necessarily  included  all  meats  from  animals  slaugh- 
tered in  other  states. 

§  33.  Effect  of  congressional  legislation  upon  concurrent 
power  of  state. —  Congress  has  legislated  on  this  subject  of 
the  transportation  of  live  stock,5  and  has  authorized  the  secre- 
tary of  agriculture  to  make  investigation  and  inspect  cattle  in- 
tended for  interstate  commerce,  and  made  unlawful  the  trans- 
portation of  cattle  known  to  be  diseased.  It  was  argued  that 
this  exercise  of  the  federal  power  of  regulation  had  the  effect 
of  nullifying  or  suspending  the  state  statutes  on  the  same  sub- 

i  Weber  v.  Virginia,  103  U.  S.  344  313.  34  L.  Ed.  455  (1890):  Brimmer  v. 

26  L.  Ed.  565.  v.  Redman,  138  U.  S.  78  (1890),  34  L. 

ZKimmishv.    Ball,  129  U.   S.   217  Ed.  862. 

32  L  Ed.  695.  5  Act  of  May  29,  1884,  c.  60,  and  act 

Railroad  Co.  v.  Husen,  95   U.    S.  of  August  30,  1890.   c.    839,   chap.  3 

379),  24  L.  Ed.  527  Com  p.  Stats,  pp.  3182  to  3193. 
1  Minnesota    v.    Barber,  136  U.  S. 


§  34.]  CONCURRENT    AND    EXCLUSIVE    POWERS.  41 

ject.  The  Supreme  Court  held,  however,1  that  the  act  of  congress 
known  as  the  Animal  Industry  x\ct  did  not  cover  the  whole  sub- 
ject of  the  transportation  of  live  stock  from  one  state  to  an- 
other, and  that  the  statutes  of  Kansas  and  Colorado  related  to 
matters  not  covered  by  such  act.  The  statute  of  Kansas  im- 
posed a  civil  liability  upon  the  railroad  company  bringing  dis- 
eased cattle  into  the  state,  and  that  of  Colorado  made  it  a  mis- 
demeanor to  bring  into  the  state  cattle  which  had  been  herded 
within  ninety  days  prior  to  their  importation  with  cattle  hav- 
ing a  conta^eous  disease.2  The  court  said  that  the  state,  not 
having  assumed  charge  of  the  matter  as  involved  in  interstate 
commerce,  could  protect  its  people  and  their  property  against 
such  dangers.  When  the  entire  subject  of  the  transporta- 
tion of  live  stock  from  one  state  to  another  is  taken  under 
direct  national  jurisdiction  and  a  system  devised  by  which  dis- 
eased stock  may  be  excluded  from  interstate  commerce,  all 
local  or  state  regulations  in  respect  of  such  matters  and  cover- 
ing the  same  ground  would  cease  to  have  an}7  force,  whether 
formally  abrogated  or  not,  and  such  rules  and  regulations  as 
congress  may  lawfully  prescribe  or  authorize  would  alone  con- 
trol. The  power,  said  the  court,  may  thus  be  suspended  until 
national  control  is  abandoned  and  the  subject  thereby  left 
under  the  police  power  of  the  state. 

The  constitutionality  of  the  statute  of  August  30,  1SP0,  in  so 
far  as  it  provided  for  the  inspection  of  the  slaughtering  and 
packing  within  a  state,  of  cattle  intended  for  exportation,  was 
denied  by  the  United  States  circuit  court,3  and  a  party  indicted 
for  bribing  an  inspector  was  discharged  on  the  ground  that 
congress  had  no  power  to  provide  for  the  inspection  of  a  man- 
ufacturing business  within  the  limits  of  a  state. 

§  34.  State  quarantine  laws. —  The  quarantine  law  estab- 
lished by  the  state  of  Louisiana4  was  also  sustained,  the  court 
saying  that  those  state  quarantine  laws  were  a  rightful  exer- 
cise of  the  police  power  of  the  state  for  "the  protection  of  health, 
and  although  some  of  the  rules  of  this  system  amounted  to 

1  Missouri,  Kansas  &  Texas  R.  Co.  3  United  States  v.  Boyer,  85   Fed. 
v.  Haber,  169  U.  S.  613  (1898),  42  L.  Rep.  425  (W.  Dist.  of  Mo.)  (1898). 
Ed.  878;  Reid  v.  Colorado,  187  U.  S.  4  Morgan  v.  Louisiana,   118  U.    S. 
137  (1902).  47  L.  Ed.  108.  455  (1S86),  30  L.  Ed.  237. 

2  Rasmussen  v.  Idaho,  181  U.  S.  198 
(1901),  45  L.  Ed.  820. 


42  CONCURRENT    AND    EXCLUSIVE    POWERS.  [§  35. 

regulation  of  commerce  with  foreign  nations,  they  belonged  to 
the  class  which  the  state  could  establish  until  congress  acted 
in  the  matter  by  covering  the  same  ground  or  by  forbidding 
state  laws,  and  congress  had  in  effect  adopted  the  laws  of  the 
stat^  and  forbidden  interference  with  their  enforcement.1 

§  35.  Freedom  of  interstate  commerce. —  The  right  of  in- 
ite  commerce,  that  is,  the  right  of  conducting  traffic  and 
commercial  intercourse  between  the  states,  is  independent  of 
state  control,  and  where  freedom  of  commerce  between  the 
states  is  directly  involved,  the  non-action  of  congress  indicates 
its  will  that  the  commerce  should  be  free  and  untrammeled, 
and  the  states  cannot  interfere  therewith  either  through  their 
police  power  or  their  taxing  power. 

This  freedom  of  interstate  commerce  from  state  control  was 
definitely  established  as  to  the  taxing  power  of  the  state  in 
the  case  of  the  State  Freight  Tax,2  in  1S73,  and  later,  in  1887, 
in  the  case  of  Eobbins  v.  Shelby  County  Taxing  District.3 
The  freedom  of  interstate  commerce  with  respect  to  the  police 
power  of  the  state  was  also  declared  in  the  cases  relating  to 
the  liquor  traffic.4  Finally,  in  1886,  in  the  Wabash  Railway 
case,8  the  Supreme  Court  held  that  a  statute  of  a  state,  intended 
to  regulate  or  to  tax  or  to  impose  any  other  restrictions  upon 
the  transmission  of  persons  and  property  or  telegraph  mes- 
sages from  one  state  to  another,  was  not  within  that  class  of 
legislation  which  the  states  could  enact  in  the  absence  of  leg- 
islation by  congress,  and  that  such  statutes  are  void  even  as 
to  that  part  of  such  transmission  which  may  be  within  the 
state.  The  statute  of  Illinois,  therefore,  regulating  railroad 
charges  was  held  to  have  no  application  as  to  an  interstate 
shipment  even  as  to  that  part  of  the  distance  which  lay  within 
the  state  of  Illinois,  and  this  regulation  of  interstate  commerce 
from  the  beginning  to  the  end  of  the  shipment  was  confided 
to  congress  exclusively  under  the  power  to  regulate  commerce 
among  the  states. 

In  181*4  this  principle  was  extended  to  an  interstate  bridge, 
and  it  was  held  that  the  bridge  was  an  instrument  of  inter- 
state commerce  whereon   congress  alone  possessed  the  power 

i  Chapter 53, Rev.  Stat.  Act  of  1878,        3See  supra,  §  is. 
20  Stats,  at  Larj^e.  p.  M.  *  See  supra,  §  9. 

^  See  15  Wall.  23&  5  Wabash  H.  Co.  v.  Illinois,  118  U.  S. 

557(1886\  30  L.  Ed.  'J44. 


§  35.]  CONCURRENT    AND    EXCLUSIVE    POWERS.  43 

to  enact  a  uniform  schedule  of  charges,  and  that  the  authority 
of  the  state  was  limited  to  fixing  tolls  of  such  channels  of 
commerce  as  were  exclusively  within  its  territory.1  The  court, 
in  reviewing  the  cases,  said  that  in  none  of  the  subsequent 
cases  had  any  disposition  been  shown  to  limit  or  qualify  the 
doctrine  laid  down  in  the  Wabash  case. 

The  same  principle  was  later  applied  in  holding  invalid  the 
dispensary  laws  of  South  Carolina  regulating  the  sale  of  intox- 
icating liquors  and  prohibiting  their  importation,2  the  court 
holding  that  as  the  state  recognized  the  sale,  manufacture  and 
use  of  intoxicating  liquors  as  lawful,  it  could  not  discriminate 
against  their  being  imported  from  other  states. 

The  right  to  carry  on  commerce  among  the  states  is  sub- 
ject only  to  the  regulation  of  congress,  and  as  to  this  funda- 
mental right  to  conduct  such  commerce,  it  is  not  the  exercise 
but  the  existence  of  the  power  in  congress  which  excludes  all 
state  control  and  interference  whether  under  the  taxing  or 
the  police  power. 

This  freedom  from  state  control  in  the  carrying  on  of  inter- 
state commerce  must  however  be  reconciled  with  the  general 
police  power  of  the  state  in  regulating  persons,  corporations 
and  property  within  its  jurisdiction,  and  in  determining  their 
relative  rights  and  obligations.  Thus  while  a  state  cannot 
impose  any  tax  upon  interstate  commerce  as  such,  nor  restrict 
the  persons  or  things  to  be  carried  therein,  nor  regulate  the 
rate  of  tolls,  fares  or  freight,  or  interfere  with  through  trains, 
or  exclude  any  lawful  subjects  of  commerce,  it  can  prescribe 
rules  for  the  construction  of  railroads  and  their  management 
and  operation  for  the  protection  of  persons  and  propert}'. 
Such  rules  are  not  in  themselves  regulations  of  interstate  com- 
merce, although  they  may  control  in  some  degree  the  conduct 
and  liability  of  those  engaged  in  such  commerce.3  While  the 
line  of  distinction  is  not  always  clear  between  what  is  a  law- 
ful regulation  of  persons  and  property  within  the  jurisdiction 

i  Covington,    etc.,    Bridge    Co.    v.     cook,  170  U.  S.  43S  (1898),  42  L.  Ed. 
Kentucky,  154  U.  S.  204  (1894).  38  L.     1100. 
Ed;  862.  3  Chicago,  etc.,  R.  Co.  v.  Solan,  169 

2 Scott  v.  Donald,  165  U.  S.  58;  41    U.  S.  133  (1898),  42  L.  Ed.  688:  Penu- 
lt Ed.  632  (1897);  Vance  v.  Vander-     sylvania  R.  Co.  v.  Hughes,  191  U.  S. 

477  (1903),  48  L.  Ed.  268. 


44:  CONCURRENT    AND    EXCLUSIVE    POWERS.  [§   35. 

and  what  is  a  regulation  of  interstate  commerce  conducted  by 
such  persons  or  with  such  property,  the  rule  remains  as  de- 
clared in  the  Wabash  case,  that  it  is  not  the  exercise  but  the 
existence  of  the  power  in  congress  which  makes  void  any 
action  by  the  states  regulating  such  commerce. 

The  distinction  between  the  lawful  exercise  of  the  power  of 
the  state  in  regulating  the  relative  rights  and  duties  of  those 
subject  to  its  jurisdiction  and  the  unlawful  regulation  of  inter- 
state commerce  was  illustrated  in  two  recent  cases  where  state 
Legislation  undertook  to  deal  with  the  liability  of  carriers  in 
interstate  shipments  of  goods  damaged  on  connecting  lines.  A 
V  irginia  statute,  providing  that  a  carrier  might  make  any  lim- 
itation as  to  its  liability  on  an  interstate  shipment  beyond  its 
own  line  which  it  deemed  proper,  providing  only  the  evidence 
was  a  contract  in  writing  and  signed  by  the  shipper,1  and  that 
the  carrier  should  be  liable  unless  within  a  reasonable  time  he 
gave  satisfactory  proof  to  the  consignor  that  the  loss  or  injury 
did  not  occur  while  the  thing  was  in  his  charge,  was  sustained 
by  the  supreme  court.  Such  a  provision,  the  court  said,  was 
a  reasonable  one  and  not  a  regulation  of  interstate  commerce. 
On  the  other  hand,  a  Georgia  statute,  which,  as  construed  by 
the  Supreme  Court  of  that  state,  applied  to  interstate  ship- 
ments and  imposed  upon  the  carrier,  as  a  condition  of  availing 
itself  of  a  valid  contract  of  exemption  from  liability  beyond 
its  own  line,  the  duty  of  tracing  the  freight  and  informing  the 
shipper  when,  where,  and  how,  and  by  which  carrier,  the  freight 
was  lost,  damaged  or  destroyed,  and  of  giving  the  names  of 
the  parties  and  their  official  position,  if  any,  by  whom  the  truth 
of  the  fact  set  out  in  the  information  could  be  established,  was, 
when  applied  to  an  interstate  shipment,  in  violation  of  the 
constitution.2  The  court  distinguished  this  case  from  the  Vir- 
ginia case  in  that  the  carrier  was  made  liable  for  the  negli- 
o-ence  of  another  carrier  over  whose  track  it  had  no  control, 
unless  it  obtained  information  which  it  had  no  means  of  com- 
pelling another  carrier  to  give.  The  court  said  this  was  not  a 
reasonable  regulation  in  aid  of  interstate  commerce  but  a  di- 
rect and  immediate  burden  upon  it. 

i  Richmond  &  A.  R.  Co.  v.  Patter-  2  Central  of  Georgia  R.  Co.  v.  Mur- 
son  Tobacco  Co..  169  U.  S.  311,  42  L.  phey,  25  Sup.  Ct.  Rep.  218  (Feb.  15, 
Ed  T.V.i  (1898).  1905),  196  U.  S.  194. 


§§  36,  37.]  CONCURRENT    AND    EXCLUSIVE    POWERS.  45 

§  36.  Congressional  inaction  in  foreign  and  interstate 
commerce  distinguished. —  In  one  of  the  "original  package" 
cases,  Bowman  v.  Railroad  Company,1  where  the  Supreme 
Court  first  laid  down  the  rule  that  in  interstate  commerce  the 
inaction  of  congress  meant  freedom  of  commercial  intercourse 
as  to  an}'  lawful  subject  of  commerce  in  the  "original  package," 
it  was  suggested  that  while  the  two  powers  over  interstate  and 
foreign  commerce  are  contained  in  the  same  clause  and  in  the 
same  term,  the  same  inference  was  not  always  to  be  drawn  from 
the  absence  of  legislation  by  congress.  Laws  which  concern 
the  exterior  relations  of  the  United  States  with  other  nations 
and  governments  are  general  in  their  nature,  and  the  people 
of  the  several  states  can  have  no  relation  with  foreign  powers 
in  respect  to  commerce  or  any  other  subject  except  through 
the  government  of  the  United  States,  its  laws  and  treaties. 
The  question  was  therefore  to  be  considered  in  each  case,  as  it 
arises,  whether  the  fact  that  congress  has  failed  in  the  parti- 
cular instance  to  provide  by  law  a  regulation  of  commerce 
among  the  states  is  conclusive  of  the  intention  that  the  subject 
shall  be  free  from  all  positive  regulation,  or  that  until  it  posi- 
tively interferes,  such  commerce  may  be  left  free  to  be  dealt 
with  by  the  respective  states. 

§37.  Attachment  of  foreign  railroad  cars. —  An  interest- 
ing question  has  been  made  in  cases  in  the  state  courts,  though 
it  does  not  appear  to  have  been  directly  presented  in  the  fed- 
eral courts  in  any  reported  cases,  as  to  the  right  to  attach  cars 
of  a  foreign  railroad  company  while  in  a  state  in  the  custody 
of  another  company  which  has  received  them  under  an  arrange- 
ment whereby  they  are  to  be  unloaded  and  returned  loaded  to 
their  owner.  Thus,  it  was  decided  by  the  supreme  court  of 
West  Virginia  in  a  recent  case3  that  a  railroad  car  belonging 
to  a  railroad  company  of  another  state  and  sent  from  that 
state  loaded  with  freight,  to  be  returned  loaded  to  the  former 
state  in  the  transaction  of  interstate  commerce,  could  not  be 
levied  upon  under  a  state  attachment,  nor  would  another  rail- 
road company  having  in  its  possession  such  cars  in  the  process 
of  carrying  on  such  commerce  be  liable  to  garnishment  by  reason 

i  Bowman  v.  Chi.  &  N.  W.  R.  Co.,  3  Wall  v.  Norfolk  &  Western  R.  Co.. 
125  U.  S.  465  (1888),  31  L.  Ed.  TOO.  52  W.  Va.  485,  and  64  L.  R.  A.  501 

2  Supra,  $5  16.  (Annotated). 


46  CONCURRENT    AND    EXCLUSIVE    POWERS.  [§  38. 

of  its  possession  of  such  cars.  The  constitution  of  the  state 
provided  that  the  rolling  stock  should  be  subject  to  levy  under 
execution,  but  the  court  based  its  ruling  upon  the  supremacy 
of  the  federal  power  in  interstate  commerce.  There  was  no 
act  of  congress  prohibiting  state  process  against  such  cars,  but 
the  court  based  its  decision  upon  the  paramount  force  of  the 
commerce  clause  of  theconstituon,  and  the  act  of  I860,1  autho- 
rizing interstate  connections  for  the  transaction  of  interstate 
commerce. 

The  same  ruling  was  made  in  Minnesota  in  a  recent  case.2 
The  court  made  the  same  ruling  in  regard  to  an  unloaded  car 
belonging  to  a  foreign  carrier  which  had  been  sent  into  the 
state  to  be  unloaded  and  reloaded  and  sent  back  without  un- 
reasonable delay.  The  court  said  if  there  was  unreasonable 
delay,  or  if  the  car  was  diverted  to  other  uses,  a  different  rule 
might  apply.  But  where  the  car  was  practically  in  transit, 
the  litigants  would  be  compelled  to  test  their  cause  of  action 
in  the  tribunals  where  the  property  had  its  undoubted  legal 
situs.3 

These  decisions,  it  will  be  seen,  are  based  not  upon  the  ex- 
emption of  the  rolling  stock  or  other  property  of  railroads  or 
other  public  carriers  from  legal  process,  but  upon  considera- 
tions of  public  policy  in  the  enforcement  of  the  process  of 
state  courts  against  property  which  had  its  legal  situs  in  other 
jurisdictions. 

This  attachment  of  foreign  cars,  or  the  garnishment  of  a 
local  company  on  account  of  its  possession  of  such  cars  of  a  for- 
eign carrier,  is  to  be  distinguished  from  garnishment  of  car- 
riers on  account  of  consignment  of  merchandise  for  debts  of 
shippers.     Such  garnishment  has  been  sustained.4 

§38.  Rulings  of  the  state  courts  on  the  commerce  clause. — 
While  the  Supreme  Court  of  the  United  States  is  the  final 
arbiter  of  all  questions  in  the  construction  and  application  of 
the  federal  constitution  and  the  validity  of  state  legislation  in 

1  Infra,  i,  40.  The  same  ruling  is  reported  to  have 

-  Connery  v.  Q.,  O.  &  K.  C.  R.  Co.,  been   made  by  certain  of  the  IT.  S. 

1)1  Minn. — and  64  L.  R.  A.  625;  Bald-  cn-cuit  courts,   but   cases  have  not 

win  v.  Great  Northern  K.  R.  81  Minn,  been  officially  reported. 

247.  ■»  Landa  v.  Hoick,  129  Mo.  663(1895); 

also  Michigan  Cen.  R.  Co.  v.  Adams  v.  Scott,  104  Mass.  164. 

C.  M.  &  L.  S.  R.  Co.,  1  III.  App.  399. 


§  3S.]  CONCURRENT    ADD    EXCLUSIVE    POWERS.  47 

the  exercise  of  the  police  or  taxing  power  of  the  state  with 
reference  to  the  same,  it  is  also  true  that  under  our  dual  form 
of  government  the  state  courts  may,  in  the  exercise  of  their 
jurisdiction,  be  called  upon  to  determine  such  questions,  and 
their  judgment  may  be  final  as  to  the  parties  to  the  cause 
when  their  decision  is  in  favor  of  the  federal  right  set  up  in 
the  case.  Thus,  if  a  federal  right  or  immunity  is  claimed  in  a 
case  in  a  state  court,  aud  the  judgment  of  the  highest  court 
having  jurisdiction  in  the  state  is  in  favor  of  the  party  making 
such  claim  of  federal  right,  the  decision  of  the  state  court 
thereon  is  final  in  that  cause,  and  cannot  be  reviewed  on  writ 
of  error  by  the  supreme  court.  This  is  because  the  judiciary 
act  of  1789  limits  the  appellate  jurisdiction  of  the  Supreme 
Court  in  reviewing  decisions  of  the  highest  courts  of  the  state 
to  cases  where  the  decision  is  against  the  federal  right,  privi- 
lege or  exemption  claimed.  In  a  number  of  cases  decisions  of 
state  courts  have  been  rendered  sustaining  the  claim  of  federal 
right  of  exemption  and  adjudging  such  statutes  to  be  invalid, 
and  such  judgments,  for  the  reasons  stated,  are  final  as  to 
the  parties  to  the  cause.  In  the  cases  cited  in  the  preceding 
section  the  decisions  of  the  state  courts  were'final,  as  they  were 
rendered  in  favor  of  the  federal  claim  set  up  in  the  case  by  the 
defendant  carriers.1 

1  In  the  following  cases  state  stat-  labor  in  another  state  to  be  labeled 

utes  have  been  held  void  by  state  as  such  when  exposed  for  sale.    Peo- 

courts:  pie  v.  Hawkens,  157  N.  Y.  1.     Or  to 

Requiring  a  railway  company  to  be  sold  under  special  license.  Arnold 

transfer  its  freights,  passengers,  etc.,  v.  Yanders  (Ohio),  47  N.  E.  50.    Rail- 

at  a  given  point.     Council  Bluffs  v.  roads  to  remove  free  of  charge  pau- 

Railway  Co.,  45  Iowa.  338.     Inspec-  peis    brought  into  the  state  by  it. 

tion  before  slaughtering  of  certain  Bangor  v.  Smith,  83  Me.  422,  Imposing 

animals  in  so  far  as  it  provides  that  a  tax  on  bills  of  lading.     Garrison  v. 

fresh  meats  cannot  be  shipped  into  Tillinghast,  IS  Cal.  404.     Inspecting 

the  state  except  that  the  animals  cattle  driven  into  a  state  and  impos- 

shall  be  inspected  forty-eight  hours  ing  a  fee  therefor.     Faris  v.  Hender- 

before  being  slaughtered.     Schmidt  son,    1  Old.  384.     Providing  for  the 

v.  People,  18  Colo.  78.     Imposing  a  inspection  of  lime  imported  into  the 

penalty  of  $500  for  shipping  freight  state.    Higgins  v.  Casks  of  Lime,  130 

other  than  as  designated  by  the  ship-  Mass.  1.    Requiring  all  persons  other 

per.     Lowe  v.  Railway  Co.,  63  S.  G  than  photographers  of  the  state  who 

248.     Making  a  railway  ticket  bind-  shall  solicit  pictures  to  be  enlarged 

ing  on  the  railway  company  for  six  outside  of  the  state  to  pay  tax.  State 

years.     La  Farier  v.  Railway  Co.,  84  v.  Scott. 98  Ten n.  251.  City  ordinance 

Me.    286.     Goods   made   by  convict  prohibiting  a  street  railroad,  engaged 


4- 


CONCURRENT    AND    EXCLUSIVE    POWERS. 


[§38. 


in  interstate  commerce,  to  discrim- 
inate in  rates  in  favor  of  residents  of 
city.  State  v.  Omaha  R.  Co.  (Iowa), 
^4  N.  W.  983.  Providing  that  no 
stone  shall  be  used  on  any  municipal 
work  except  the  stone  was  dressed 
or  cut  or  carved  within  the  state. 
IV.  .pie  v.  Coler,  166  N.  Y.  144. 

State  statutes  have  been  held  valid 
by  the  courts  of  their  respective 
states  in  the  following  cases: 

Eolding  a  railroad  company  liable 
for  damages  done  by  sparks  from  its 
engine.  Smith  v.  Railway  Co.,  63 
N.  H.  25.  Requiring  railroad  leases 
to  be  recorded.  Commonwealth  v. 
Railway  Co.  (Ky.),  40  S.  W.  Rep.  250. 
Prohibiting  the  sale  of  tickets  by  any 
one  not  authorized  to  do  so  by  the 
railway  company.  State  v.  Corbett, 
57  Minn.  345;  Commonwealth  v.  Wil- 
son, 14  Phila.  384;  State  v.  Fry,  63 
1ml.  552;  Burdick  v.  Illinois.  149  111. 
600.  Imposing  a  penalty  on  the  rail- 
way company  for  refusing  to  deliver 
freight  upon  tender  of  payment  of 
charges  shown  in  the  bill  of  lading. 
Railway  Co.  v.  Dwyer,  75  Tex.  572. 
Prohibiting  a  railway  company  from 
charging  for  the  freight  any  greater 
sum  than  specified  in  the  bill  of  lad- 
ing. Railway  Co.  v.  Carden  (Tex.), 
34  S.  W.  Rep.  145.  Prohibiting  rail- 
road from  increasing  freight  rates 
for  a  certain  class  of  freight  after 
freight  has  been  tendered  for  ship- 
ment. Railway  Co.  v.  Wolcott.  141 
Ind.  -207.  Compelling  a  railway  to 
post  notices  as  to  whether  a  train  is 
on  time  or  not.   State  v.  Ind.  Ry.  Co., 


133  Ind.  69.  Prescribing  the  hours 
during  which  a  railroad  ticket  office 
shall  be  open.  Hall  v.  Railway  Co. 
'25  S.  C.  564.  Regulating  the  speed 
of  boats  on  navigable  rivers.  Peo- 
ple v.  Jenkins,  1  Hill  (N.  Y.),  469. 
Requiring  owners  of  vessels  navi- 
gated through  a  canal  within  a  state 
to  furnish  lists  of  numbers  of  tons  of 
freight.  Canal  v.  Lockes  Co.,  6  Oreg. 
219.  Prescribing  how  many  lights 
a  boat  shall  carry,  provided  number 
is  not  less  than  the  number  prescribed 
by  congress.  Fitch  v.  Livingston,  6 
N.  Y.  Superior  Ct.  492.  Compelling 
railway  company  to  ship  freight 
within  five  days  after  its  receipt. 
Bagg  v.  Railway  Co.,  109  N.  C.  279. 
Requiring  license  of  commercial 
agency.  State  v.  Morgan,  2  So.  Dak. 
32.  A  Texas  statute  imposing  a  pen- 
alty on  railroads  for  not  furnishing 
cars  within  six  days  after  notice,  one- 
quarter  of  the  freight  being  tendered,, 
was  held  valid  in  the  case  of  a  ship- 
ment to  a  point  outside  of  the  state. 
Houston  &  Texas  C.  R.  Co.  v.  Mayes, 
Texas  Court  of  Appeals,  83  S.  W. 
Rep.  53.  In  Atlantic  Coast  Line  R. 
Co.  v.  Commonwealth  (Va.),  46  S.  E. 
Rep.  910,  the  rules  prescribed  by  the 
new  Virginia  constitution  with  ref- 
erence to  storage,  demurrage,  car 
service,  and  car  detention,  charges 
were  not  void  as  regulations  inci- 
dentally affecting  interstate  com- 
merce, but  this  ruling  was  without 
prejudice  to  the  right  of  any  carrier 
to  raise  and  determine  the  validity 
of  any  rule  in  any  specific  case. 


CHAPTER  III. 

THE  FEDERAL  REGULATION  OF  INTERSTATE  COMMERCE. 

§  39.  The  beginning  of  federal  regulation 49 

40.  The  railroad  act  of  1866 50 

41.  State  regulation  of  railways  in  the  United  States 52 

42.  Governmental  regulation  of  railways  in  England 53 

43.  The  common  law  in  interstate  commerce 54 

44.  Federal  and  state  courts  in  the  fe  leral  regulation  of  interstate 

commerce 5G 

45.  Genesis  of  the  interstate  commerce  act 5S 

46.  Passage  of  the  interstate  commerce  act 59 

47.  Judicial  construction  of  the  act  to  regulate  commerce 60 

48.  Amendments  and  proposed  amendments  of  the  act   62 

49.  Regulation  of  bridges  and  femes  over  navigable  rivers 65 

50.  Regulation  of  interstate  telegraph  companies 67 

51.  Interstate  telephone  companies  not  included  in  the  act  of  1866.  69 

52.  The  release  of  the  federal  regulating  power  * . .  70 

53.  Regulation  by  the  delegation  of  power 71 

54.  Additional  acts  of  congress  in  the  regulation  of  commerce 72 

55.  The  department  of  commerce  and  labor. 74 

56.  The  unexercised  federal  power  in  regulation  of  commerce 76 

57.  Prohibition  and  regulation   78' 

58.  The  regulation  of  commerce  through  the  taxing  power. 79 

59.  The  federal  power  in  granting  corporate  charters SO 

60.  National  incorporation  as  a  means  in  the  exercise  of  the  com- 

merce power 82 

61.  Relation  of  the  states  to  federal  corporations S3. 

62.  The  requirement  of  federal  franchise  for  business  corporations 

in  interstate  commerce S4 

63.  The  developing  construction  of  the  federal  power  in  the  regu- 

lation of  commerce 86; 

§  39.  The  beginning  of  federal  regulation. — Although  the 
recognized  necessity  for  the  national  control  of  interstate  com- 
merce was  the  immediate  occasion  and  moving  purpose  in  the' 
adoption  of  the  constitution  and  the  formation  of  the  federal 
union,  and  the  broad  and  comprehensive  construction  of  the 
commerce  clause  by  the  supreme  court  under  chief  justice  Mar- 
shall has  laid  the  foundation  of  all  subsequent  decisions;  the 
direct  federal  regulation  of  such  commerce,  at  least  as  to  land 

4 


50  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.         [§  40. 

transportation,  did  not  begin  until  the  close  of  the  first  century 
of  the  republic's  existence.  The  far-reaching  importance  of 
national  control  over  interstate  as  well  as  over  foreign  com- 
merce was  not  and  could  not  be  foreseen  at  the  time  of  the 
adoption  of  the  constitution.  It  was  not  until  twenty  years 
after  the  close  of  the  civil  war  that  changed  economic  condi- 
tions of  the  country  made  intolerable  the  discriminating  legis- 
lation of  the  states  and  led  to  the  judicial  declaration  by  the 
supreme  court  in  1886,'  that  in  the  matter  of  interstate  com- 
merce the  United  States  were  but  one  country  and  are  and 
must  be  subject  to  but  one  system  of  regulations,  and  not  to  a 
multitude  of  systems.  Soon  after  this,  in  1SSS  and  in  1890,2 
the  court  extended  the  same  principle  of  the  freedom  of  inter- 
state commerce  to  the  police  power  of  the  states  in  the' liquor 
traffic  decisions.  In  1886  it  was  also  definitely  decided3  that 
the  state  power  of  regulation  of  railway  traffic  did  not  and 
could  not  extend  to  interstate  traffic  in  any  form,  and  that 
such  shipments  were  national  in  their  character,  and  their  reg- 
ulation confined  to  congress  exclusively.  Thus  it  was  for  the 
first  time  decided  that  this  right  of  interstate  commerce  was 
so  essentially  national  in  its  character  that  the  inaction  of  con- 
gress was  equivalent  to  its  determination  that  the  commerce 
must  be  free,  and  that  therefore,  any  state  regulation  of  the 
right  to  carry  on  such  commerce  was  inoperative  and  void. 
The  principle  of  concurrent  state  powers  during  the  inaction 
of  congress  and  the  invalidation  of  state  action  by  reason,  not 
of  the  existence,  but  of  the  exercise  of  the  federal  power  had  no 
application  to  the  regulation  of  the  right  to  carry  on  commerce 
between  the  states. 

Thus  the  close  of  the  first  one  hundred  years  of  the  govern- 
ment was  marked  by  the  distinct  judicial  declaration  of  the 
freedom  of  interstate  commerce  from  any  control  or  regulation 
by  the  states,  either  by  police  or  taxing  power,  and  the  way 
was  logically  opened  for  the  direct  exercise  by  congress  of  the 
power  of  regulation  conferred  by  the  constitution. 

M).  The  railroad  act    of  WW.—  Although  congress  had 

i  Robbins  v.  Shelby  County  Tax-  :i  Wabash,  St.  L.  &  P.  R.  Co.  v.  1111- 
ing  District,  supra.  nois,  supra. 

-  Bowman   v.  Railway  Co.,  supra; 
Leisy  v.  Hardin,  supra. 


§  40.]         FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  51 

frequently  legislated  on  the  subject  of  water  transportation 
{supra,  §  12),  its  first  legislation  in  regard  to  railroad  trans- 
portation, other  than  the  incorporation  of  the  land  grant  and 
government  aided  Pacific  railroads  in  1862,  was  the  act  of  June 
15,  1866,  since  incorporated  in  the  revised  statutes  as  section 
5258.     This  act  was  entitled  in  its  preamble, 

"Whereas  the  constitution  of  the  United  States  confers  upon 
congress  in  express  terms,  the  power  to  regulate  commerce 
among  the  several  states,  to  establish  post-roads,  and  to  raise 
and  support  armies,"  and  it  provided  as  follows: 

"Every  railroad  company  in  the  United  States,  whose  road 
is  operated  by  steam,  its  successors  and  assigns,  is  hereby 
authorized  to  carry  upon  and  over  its  road,  boats,  bridges  and 
ferries,  all  passengers,  troops,  government  supplies,  mails, 
freight  and  property  on  their  way  from  any  state  to  another 
state,  and  to  receive  compensation  therefor,  and  to  connect 
with  roads  of  other  states,  so  as  to  form  continuous  lines  for  the 
transportation  of  the  same  to  the  place  of  destination.     .     .     . 

"This  section  shall  not  be  construed  to  authorize  any  railroad 
company  to  build  any  new  road,  or  any  connection  with  an- 
other road,  without  authority  from  the  state  in  which  such  rail- 
road or  connection  shall  be  proposed." 

The  purpose  of  this  act,  as  declared  b\r  the  Supreme  Court, 
was  to  remove  trammels  upon  transportation  which  had  previ- 
ously existed,  and  to  prevent  the  creation  of  such  trammels  in 
the  future,1  and  also  to  be  a  declaration  by  congress  in  favor  of 
the  great  policy  of  continuous  lines,  and,  therefore,  as  favoring 
such  business  arrangements  between  companies  as  would  make 
such  connections  effective,2  and  as  indicating  an  intent  that 
interstate  commercial  intercourse  should  be  free.3 

The  statute,  however,  imposes  no  duties  upon  carriers  so  as  to 
compel  through  routing  of  interstate  traffic,  and  merely  per- 
mits or  authorizes  the  carriage  of  freight  or  traffic  from  one 
state  to  another  and  the  formation  of  continuous  lines  by  mu- 
tual agreement.4  The  act  was  only  intended  to  remove  tram- 
mels upon  transportation  between  different  states  imposed  by 
state  enactments  or  the  then  existing  laws  of  congress,  and  did 

i  Railroad   Co.    v.    Richmond,    19        'Bowman  v.  C.  &  N.  W.   R.  R.,  125 

Wall.  584  (1873),  22  L.  Ed.  173.  U.  S.  465  (1888),  31  L.  Ed.  700. 

2  Union  Pacific  R.    Co.  v.  Chicago,        4  Kentucky  &  Indiana  Bridge  Co. 

etc.  R.  Co..  163  U.  S.  589  (1896),  41  L.  v.  L.  &  N.  R.  Co.,  37  Fed.  Rep.  567,  1. 

Ed.  268,  274.  c.  p.  633  (1S89). 


D'2  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.        [§  41. 

not  prevent  the  operation  of  police  laws  of  the  states  affecting 
interstate  railways.1 

The  statute  did  not  interfere  with  the  laws  of  the  states 
having  for  their  object  the  personal  security  of  passengers,  nor 
did  it  interfere  with  such  state  enactments  as  the  regulating 
of  the  running  of  trains  on  Sunday,2  or  excluding  diseased  cat- 
This  statute,  however,  in  its  declaration  of  the  national 
public  policy  in  favoring  continuous  interstate  transportation, 
was  invoked  by  certain  state  courts  in  holding  that  railroad 
cars  employed  in  interstate  transportation  are  not  subject  to 
levy  under  attachment  process  against  the  owning  company 
when  in  the  possession  of  a  connecting  company  in  another 
state.4 

§  41.  State  regulation  of  railways  in  the  United  States. 
With  this  judicial  declaration  of  the  freedom  of  interstate 
commerce  from  state  control,  also  came  the  distinct  judicial 
recognition  of  the  governmental  power  of  regulation  over 
public  carriers.  This  principle  had  been  already  established 
both  in  the  states  of  this  country  and  in  England. 

Thus,  in  this  country,  prior  to  the  adoption  of  the  interstate 
commerce  act,  railway  commissions  had  been  established  in 
several  states,  some  with  powers  of  regulation,  and  others 
only  with  powers  of  investigation,  and  recommendation.  It 
was  established  in  the  Granger  cases,5  that  railroad  companies 
were  carriers  for  hire  and  as  such  were  engaged  in  the  public 
employment  affecting  the  public  interests  and  wrere  subject 
to  legislative  control  as  to  their  rates  of  fare  and  freight,  un- 
less  protected  by  their  own  charters  therefrom.  As  carriers 
the}7  must  carry  when  called  upon  to  do  so,  and  can  charge 
only  a  reasonable  sum  for  the  carriage.  The  principle  was  also 
distinctly  declared  that  when  property  had  been  clothed  with 
a  public  interest,  the  legislature  may  fix  a  limit  to  that  which 
in  law  shall  be  reasonable  for  its  use,  and  that  this  limit  binds 
the  courts  as  well  as  the  people.  It  was  urged  in  these  cases 
that  the  statutes  of  the  states  regulating  rates  amounted  to  a 

'  R.  R.  Co.   v.  Fuller,  17  Wall.    560  s  Munn   v.   Illinois,   94  U.    S.    113 

(1873),  '21  L.  Ed.  710.  (1870),  24 L.    Ed.  77;   Railroad  Co.  v. 

-  Bennington  v.  Georgia,  supra.  Iowa,  94  U.  S.  155  (1S76),  24  L.  Etl.  94: 

M.  K.  &  T.   R.    Co.  v.  Haber,   169  Peik   v.    Railway  Co.,  94  U.    S.    164 

U.  S.  013  (1898),  42  L,  Ed.  878,  (1876),  24  L.  Ed.  97. 

4  See  supra,  sec.  37. 


§  42.]         FEDERAL   REGULATION    OF    INTERSTATE    COMMERCE.  53 

regulation  of  commerce  among  the  states;  but  it  was  held  that 
where  the  railroad  was  employed  in  state  as  well  as  in  inter- 
state commerce,  and  until  congress  acted,  the  state  must  be 
permitted  to  establish  such  rules  and  regulations  as  may  be 
necessary  for  the  promotion  of  the  general  welfare  of  the  peo- 
ple within  its  own  jurisdiction,  even  though  in  doing  so  those 
without  may  be  indirectly  affected. 

While  there  has  been  some  difference  of  judicial  opinion  as 
to  what  classes  of  business  were  affected  with  a  public  use  so 
as  to  warrant  state  regulation  of  charges,  there  has  been  no 
such  difference  as  to  the  application  of  the  principle  to  com- 
mon carriers,  and  their  subjection  to  public  regulation  has 
been  uniformly  conceded.1 

•  §  42.  Governmental  regulation  of  railways  in  England. — 
The  principle  of  governmental  regulation  of  railways  was 
adopted  in  England  soon  after  the  first  introduction  of  rail- 
ways in  that  country.  Thus,  the  Railwa3^s  Clauses  Consolida- 
tion Act  of  1S45,  in  granting  the  power  to  vary  tolls  upon 
railway's  so  as  to  accommodate  them  to  the  circumstances  of 
the  traffic,  provided  that  tolls  should  be  at  all  times  charged 
equally  to  all  persons,  and  that  the  power  of  varying  should 
not  be  used  for  the  purpose  of  prejudicing  or  favoring  particu- 
lar parties,  or  for  the  purpose  of  collusivel}7  or  unfairly  creat- 
ing a  monopoly  either  in  the  hands  of  the  company  or  of  par- 
ticular parties.  The  Railway  and  Canal  Traffic  Act  of  1854 2 
specifically  provided  that  the  railway  company  should  make 
arrangements  for  receiving  and  forwarding  freight,  and  pro- 
hibiting any  undue  or  unreasonable  preference  or  advantage, 
using  substantially  the  language  adopted  in  the  third  section 
of  the  Interstate  Commerce  Act,  and  authorized  summary 
proceedings  in  the  courts  for  the  enforcement  of  its  provisions. 
The  act  of  186S3  provided  for  securing  equality  of  treatment 
where  the  railway  company  operates  its  steam  vessels;  and, 
finally,  the  Regulation  of  Railways  Act  of  1873 4  authorized 
the  appointment  of  not  more  than  three  commissioners,  one 

i  Budd  v.  New  York,  143  U.  S.  517  Louis  R  Co.  v.  Minnesota,  186  U.  S. 

(1892),  36  L.  Ed.  247:  Brass   v.  North  237  (1902).  46  L.  Ed.  1151. 
Dakota.  153  U.  S.  391  (1894).  38  L.  Ed.        -'  17  and  18  Vic,  c.  31. 
757:  State  ex  rel  v.  Associated  Press,        ;i  31  and  32  Vic,  c  119. 
159  Mo.  410  (1901),  Minneapolis  &  St.        4  36  and  37  Vic.  c  48. 


54  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.         [§  43. 

of  whom  should  be  experienced  in  the  law  and  one  of  experi- 
ence in  the  railway  business,  and  not  more  than  two  assistant 
commissioners,  and  this  commission  was  granted  very  compre- 
hensive powers,  including  the  power  of  making  through  routes 
and  apportioning  through  rates  thereon.  As  will  be  hereafter 
seen,  some  of  the  provisions  of  the  Interstate  Commerce  Act 
are  based  upon  the  English  statutes,  and  the  English  decisions 
construing  those  statutes  have  been  frequently  cited  in  the 
federal  courts.1  English  precedents  however  in  the  matter 
of  public  regulation  of  railways  are  of  limited  value  in  this 
country  in  view  of  the  vast  difference  in  the  conditions  of  rail- 
mad  service.  In  the  one  there  is  compact  population  in  a 
limited  area;  in  the  other  a  great  continent,  with  immense 
tracts  of  sparsely  settled  and  newly  opened  territory,  covered 
with  a  great  network  of  railroads  and  with  numerous  com- 
peting communities. 

§43.  The  common  law  in  interstate  commerce.— There 
is  no  federal  common  law  in  the  sense  of  a  national  customary 
law  distinct  from  the  common  law  of  England,  as  adopted  by 
the  several  states,  each  for  itself,  applied  to  its  local  law  and 
subject  to  such  alterations  as  may  be  provided  by  its  own  stat- 
utes.'- There  are  therefore  no  crimes  of  the  United  States, 
and  no  pains  and  penalties  are  enforced  by  its  courts,  except  as 
enacted  in  the  statutes  of  the  United  States. 

Under  section  721  of  the  Judiciary  Act  the  laws  of  the 
reveral  states  are  enforced  in  the  courts  of  the  United  States.1 
In  this  section,  by  the  "laws  of  the  states"  is  meant  the 
statute  laws  of  the  states  as  construed  by  the  local  tribunals, 
and  not  the  rules  of  law  declared  by  the  decisions  of  the  states 
in  matters  of  general  jurisprudence.4  The  federal  courts  are 
not  bound  to  follow  the  rulings  of  the  state  courts  on  ques- 
tions of  general  commercial  law  or  of  equity  jurisprudence, 

1  Infra,  Interstate  Commerce  Act,  stitution,  treaties,  or  statutes  of  the 

2  and  3.  United  States  otherwise  require  or 

-  Wheaton    v.    Donaldson,   8   Pet.  provide,  shall  be  regarded  as  rules 

1.  c.  658,  8  L.  Ed.  1079  (1834);  Smith  of  decision  in  trials  at  common  law, 

v.  Alabama,   124  U.  S.  465  (1888),  31  in  the  courts  of  the  United  States, 

L  Ed  508.  in   cases  where   they  apply."    (Act 

3 -Sec.    721.     Laws  of  the  states;  Sept.  24,  1789,  c.  20,  §  34,  1  Stat.  92.) 

rules  of  decision.     The  laws  of  the  4  Railroad  Co.  v.  Baugh,  149  U.  S. 

several  states,  except  where  the  con-  368  (1893),  37  L.  Ed.  772. 


§  43.]         FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  55 

but  they  declare  their  own  views  of  the  law,  irrespective  of 
the  courts  of  the  state,1  and  the  same  ruling  has  been  made  as 
to  the  legal  principles  controlling  the  liability  of  railroad  com- 
panies to  employees. 

There  was  no  federal  statutory  regulation  of  interstate  com- 
merce prior  to  the  enactment  of  the  interstate  commerce  law 
in  1SST.  It  was  ruled  in  some  of  the  circuit  courts,  that  in  the 
absence  of  a  distinct  federal,  common  law  or  statute,  there  was 
no  law  prior  to  1887  controlling  the  regulations  of  carriers  and 
shippers  in  interstate  commerce  and  warranting  a  recovery  on 
account  of  discriminating  charges  therein,  and  that  this  was 
a  matter  of  exclusive  federal  jurisdiction,  which  was  not  exer- 
cised prior  to  the  enactment  of  the  Interstate  Commerce  Act.2 
It  was  therefore  held  that  the  state  courts  had  no  jurisdiction 
in  such  cases,  and  as  the  courts  of  the  United  States  in  removed 
cases  had  no  wider  jurisdiction  than  the  courts  from  which 
the}7  were  removed,  the  federal  courts  had  no  jurisdiction 
therein. 

This  question  of  the  common  law  in  interstate  commerce 
was  presented  to  the  Supreme  Court  in  1901  in  a  case  from 
Nebraska,3  where  the  Supreme  Court  of  that  state  had  sus- 
tained a  recovery  against  an  interstate  telegraph  company, 
for  alleged  discrimination  in  charges.  The  company  claimed 
that  as  there  was  no  federal  regulation  of  interstate  telegraph 
rates,  there  could  be  no  recovery,  as  there  was  no  controlling- 
statute  or  common  law  for  such  recovery.  The  Supreme  Court, 
however,  sustained  the  recovery,  holding  that  there  was  a 
common  law  in  force  generally  throughout  the  United  States, 
and  that  the  countless  multitude  of  interstate  commercial 
transactions  were  subject  to  the  rules  of  common  law  except 
so  far  as  they  were  modified  by  congressional  enactment. 
The  jurisdiction  of  the  state  court  to  enforce  these  principles 

i  Swift  v.  Tyson,  16  Pet.  1  and  18  Railroad  Co.,  62  Fed.  Rep.  24,  35  C.  C. 

(1842),  10   L.    Ed.  865,  871;    Oats  v.  A.  62  (1899),  92  Fed.  Rep.  868;  Adams, 

Bank,  100  U.  S.  239  (1879),  25  L.  Ed.  J.,  in  Kinnaey  v.  Terminal  Associa- 

580;  Railroad  Co.  v.  National  Bank,  tion,  81  Fed.  Rep.  802. 

102  U.  S.  14  (1880),  26  L.  Ed.  61.  3  Western   Union   Tel.  Co.  v.  Call 

2  Swift  v.  Railroad  Co.,  58  Fed.  Rep.  Pub-  Co.,  181  U.  S.  92  (1901),  45  L,  Ed. 

858;    Sheldon   v.   Railroad   Co.,    105  765- 
Fed.  Rep.  785.     See  contra,  Murry  v. 


56  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.         [§  44. 

of  the  common  law  in  interstate  commercial  transactions  was 
therefore  sustained. 

The  court  in  its  opinion  in  these  cases  refers  approvingly  to 
an  opinion  of  Judge  Shiras  in  the  Iowa  circuit,1  where  the 
subject  had  been  exhaustively  discussed  in  a  suit  for  damages 
against  a  railroad  carrier  on  account  of  alleged  discrimination 
in  interstate  shipments  prior  to  the  enactment  of  the  Inter- 
slate  Commerce  Act.  This  case  had  been  tiled  in  the  state 
court  and  removed  to  the  United  States  circuit  court,  and  it 
was  held  that  the  state  court  had  jurisdiction  of  the  subject- 
matter,  and  therefore  the  United  States  court  had  jurisdiction 
over  the  removed  case,  as  congress  had  not  declared  any  ex- 
clusive jurisdiction  in  such  cases  for  the  federal  courts. 

Under  the  law  as  declared  in  these  cases,  the  principles  of 
the  common  law  were  enforced  as  to  matters  of  national  con- 
trol as  well  as  to  matters  of  state  control,  and  in  this  sense 
there  is  a  common  law  of  the  United  States  controlling  the 
relations  of  interstate  carriers  and  the  public,  and  the  enact- 
ments of  Congress  in  the  regulation  of  those  relations  are  to 
be  construed  in  the  light  of  the  principles  of  the  common  law. 

This  applies  to  interstate  commerce  on  land.  Interstate 
commerce  carried  on  by  water,  whether  on  the  seas  or  on  the 
inland  navigable  waters  of  the  United  States,  is  subject  to  the 
rules  of  the  maritime  law  where  applicable. 

§  44.  Federal  and  state  courts  in  the  federal  regulation 
of  interstate  commerce. —  Under  the  constitution  of  the 
United  States  the  judicial  power  of  the  United  States  is  ex- 
t  nded  to  cases  arising  under  the  constitution  and  laws  of  the 
United  States,  and  this  jurisdiction  may  be  made  exclusive  in 
the  federal  courts  by  Congress  either  by  express  enactment  or 
by  necessary  implication  therein.2  It  was  at  one  time  ques- 
tioned whether  the  state  courts  could  exercise  concurrent  juris- 
dition  with  the  federal  courts  in  cases  arising  under  the  con- 
stitution, laws  and  treaties  of  the  United  States;  but  it  was 
said  by  the  Supreme  Court  in  the  case  cited  that  the  laws  of 
the  United  States  were  laws  in  the  several  states,  and  just  as 
much  binding  therein  on  the  citizens  and  courts  thereof  as 
were  the  laws  of  the  states.     Rights,  whether  legal  or  equit- 

'. Murray  v.  Railroad  Co..  supra. 

2  Claflin  v.  Houseman,  93  V.  S.  130  (1876),  23  L.  Ed.  833. 


^  41.]         FEDERAL    REGULATION    OP"    INTERSTATE    COMMERCE.  57 

able,  acquired  under  the  laws  of  the  United  States  may  be 
prosecuted  in  the  courts  of  the  United  States,  or  in  the  state 
courts  competent  to  decide  questions  of  like  character  and 
class,  subject  however  to  the  qualification  that  when  a  right 
arises  under  a  law  of  the  United  States,  Congress  may  give  to 
the  courts  of  the  United  States  exclusive  jurisdiction.1 

Under  the  act  of  18872,  the  Circuit  Courts  of  the  United 
States  were  given  original  cognizance,  concurrent  with  the 
courts  of  the  several  states,  of  all  suits  of  a  civil  nature  in 
common  law  or  equity,  not  only  in  cases  of  diverse  citizenship, 
but  also  in  cases  arising  under  the  constitution  and  laws  of 
the  United  States,  or  treaties  made,  or  which  shall  be  made, 
under  their  authority.  This  is  subject  to  the  reservation  of 
the  exclusive  jurisdiction  of  the  United  States  courts  under 
section  711  It.  S.,  U.  S.,:l  in  criminal,  patent,  admiralty  cases, 
and  suits  for  penalties  and  forfeitures  under  the  laws  of  the 
United  States.  Not  only  such  suits  brought  to  enforce  the  provi- 
sions of  specific  acts  of  congress,  but  also  all  suits  based  upon 
and  asserting  federal  rights  in  interstate  commerce,  are  suits 
arising  under  the  constitution  and  laws  of  the  United  States, 
and  the  circuit  courts  of  the  United  States  have  jurisdiction 
thereof  irrespective  of  diverse  citizenship.  The  Supreme  Court 
held  in  an  application  for  habeas  corpus  by  a  party  committed 
for  contempt  for  violating  an  injunction  granted  to  an  inter- 
state railroad  to  prevent  interference  with  its  interstate  traffic, 
that  the  circuit  court  had  jurisdiction  irrespective  of  citizen- 
ship, and  that  a  case  arose  under  the  constitution  and  laws  of 
the  United  States,  whenever  the  plaintiff  sets  up  a  right  to 
which  he  is  entitled  under  such  laws,  and  the  correct  decision 
•of  the  case  depends  upon  the  construction  of  such  laws.4 

In  suits  brought  for  the  enforcement  of  rights  in  interstate 
commerce  and  not  for  the  specific  enforcement  of  the  provi- 
sions of  the  Interstate  Commerce  Act  or  the  Anti-Trust  Act,  the 
state  courts  have  concurrent  jurisdiction  with  the  federal 
courts,  and  such  suits  may  be  brought  in  the  United  States 
•  circuit  courts  irrespective  of  citizenship."'     The  fact  that  inter- 

!See  Mr.  Hamilton  in  82d  Federal-  3 1  Compiled  Statutes,  p.  577. 

ist.  *  In  re  Lennon,  166  U.   S.   54S,  1.   c. 

2  See   Act  of   March  3,  1887.  and  553,  41  L.  Ed.  1110. 

August  13,  1888.  1  Compiled   Stats..  sgee  section  8  of  Interstate  Com- 

'^°'  merce  Act,  infra,  §  2ii  et  seq. 


5S  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.         [§  ±5. 

stat-?  commerce  is  beyond  state  legislative  control  does  not 
ipso  facto  prevent  the  courts  of  the  state  from  exercising 
jurisdiction  over  cases  growing  out  of  that  commerce,4  but  the 
state  jurisdiction  is  excluded,  if  congress  has  made  exclusive 
the  jurisdiction  of  the  federal  courts. 

Both  in  the  Interstate  Commerce  Act  and  the  Anti-Trust  Act 
of  lv'.'"  there  is  an  express  vesting  of  jurisdiction  in  the  United 
States  courts,  of  suits  brought  to  enforce  the  provisions  of  the 
act.  As  to  such  suits  brought  to  enforce  the  provisions  of  the 
Interstate  Commerce  Act,  it  has  been  held,  both  in  the  federal 
and  in  the  state  courts,  that  the  jurisdiction  is  exclusive  in  the 
United  States  courts.5  The  same  ruling  would  doubtless  be 
made  as  to  suits  brought  to  enforce  the  Anti-Trust  Act  of  1890.° 

§  V).  Genesis  of  the  Interstate  Commerce  Act.— The  rec- 
ognition of  the  governmental  power  in  controlling  interstate 
commerce  immediately  preceded  the  judicial  declaration  that 
interstate  railway  transportation  was  beyond  state  control. 
The  question  of  interference  with  interstate  commerce  had 
been  raised  in  the  Granger  cases,  and  the  court  had  held7  that 
the  act  regulating  fares  was  valid  in  the  absence  of  regulation. 
by  congress,  and  that  until  congress  undertook  to  legislate  for 
those  who  were  without  the  state,  the  state  could  provide  for 
those  within,  even  though  those  without  might  be  indirectly- 
affected. 

The  supreme  court  of  Illinois*  cited  these  cases  in  sustaining 
a  state  statute  as  to  so  much  of  interstate  transportation  as- 
was  within  the  limits  of  the  state  of  Illinois.  But  the  Supreme 
Court  in  the  same  case  (supra,  §  35),  said  that  in  the  Granger 
>s  the  importance  of  the  question  of  the  governmental  power 
of  regulation  and  of  the  company's  contract  right  of  exemption 
therefrom  overshadowed  all  others,  so  that  the  question  of 

4  Murray  v.  Chicago    &  N.  W.    R.  12  L.  R.  A.  725;  Charles  v.  Mo.  Pac.  R. 

,  ■  ,.  r,.>  Fed.  Rep.  25,  I.  a  43.  R.  Co.,  163  Mo.  632;  Gulf.  C.  &  S.  F. 

sections  8  and  9  of  Interstate  R.  R.  Co.  v.  Moore,  (Texas),   83  S.  W. 

Commerce  Act,  infra;  Van  Patten  v.  Rep.  362. 

Railroad  Co..  7-1  Fed.  Rep.  981 ;  Swift  6See  sections  4  and  7  of  the  act  of 

v.  Railroad  Co.,  53  Fed  Rep.  858;  Ed-  1890,  infra. 

munds  v.   111.   Central  R.  R.  Co..  80  '  Pike  v.  Chicago,  etc.  R.  Co.,  94  U. 

Fed.  Rep.  Tie  Sheldon  v.  Wabash  R.  S.  1.  c.  177  (1876),  24  L.  Ed.  98. 

Co.,    L05    Fed.    Rep.   185;    Ordway  v.  8  Wabash,  St.  L.  &  P.  R.  Co.  v.  II- 

i  Jentral  Nat'l.  Bank.  47  Md.  215;  Copp  linois,  104  111.  476. 
v.    Railway   Co.,    43    La.    Ann.    511, 


§  4<J.J         FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  59 

freedom  of  interstate  commerce  received  but  little  attention 
at  the  hands  of  the  court.  This  decision  of  the  Supreme  Court 
reversing  the  Supreme  Court  of  Illinois,  was  rendered  in  1886, 
in  the  same  year  that  the  freedom  of  interstate  commerce  from 
the  state  taxing  power  was  declared  in  the  Tennesee  drummer 
case,  and  broadly  affirmed  that  the  statute  of  a  state  enacted 
to  regulate  and  tax,  or  to  impose  any  other  restriction  upon 
the  transmission  of  persons  or  property  or  telegraph  messages 
from  one  state  to  another,  was  not  within  the  class  of  legisla- 
tion which  the  state,  in  the  absence  of  legislation  by  congress, 
could  enact,  and  that  the  state  statute  was  void  as  to  all  inter- 
state shipments,  including  that  part  of  the  transmission  of  such 
shipments  which  was  within  the  state. 

§46.  Passage  of  the  Interstate  Commerce  Act. —  The  deci- 
sion in  the  Wabash  case  demonstrated  the  lack  of  power  in  the 
states  to  regulate  interstate  shipments,1  and  the  demand  for  the 
exercise  of  this  power  by  congress  becoming  irresistible,  the 
interstate  commerce  bill  which  had  been  pending  for  several 
years  in  congress  became  a  law  February  4,  1S87.2 

The  discussion  in  the  two  houses  of  congress  and  in  the  pub- 
lic press  was  mainly  directed  to  the  long  and  short  haul  clause 
contained  in  the  fourth  section,  and  the  prohibition  of  pooling- 
contained  in  the  fifth  section  of  the  act.  Differences  of  opin- 
ion developed  between  the  house  and  the  senate,  the  former 
insisting  on  the  prohibition  of  pooling  and  on  a  qualified  long 
and  short  haul  clause.  The  bill  was  finally  enacted  in  the 
form  reported  by  the  conference  committee  of  the  two  houses 
of  congress.  Frequent  references  were  made  in  the  debates  to 
the  then  recent  decision  of  the  supreme  court  in  the  Wabash 
case  denying  to  the  states  any  power  for  the  regulation  of  in- 
terstate traffic.  A  very  wide  difference  of  opinion  was  devel- 
oped in  the  discussion  as  to  the  proper  construction  of  the  act, 
particularly  as  to  what  were  the  "substantially  similar  circum- 
stances and  conditions"  in  the  fourth  section,  and  one  of  the 
members  of  the  house  in  the  final  debate  described  the  bill  as 

'This  case  was  decided  October  25,  1887,  but  the  terms  of  the  commis- 

1886.  sioners  were  computed  from  January 

2  The  interstate  commerce  com-  1st.  See  19  Opinion  of  Attorney  Gen- 
mission   was  established  March  22,  erals,  p.  47,  1887. 


6U  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.       [§47. 

"  one  which  nobody  understands,  nobody  wants,  and  every- 
body is  going  to  vote  for/" 

MT.  Judicial  construction  of  the  act  to  regulate  com- 
merce.—  The  act  to  regulate  commerce  was  so  clearly  within 
the  powers  of  congress,  that  no  serious  question  was  raised  as 
to  its  constitutionality.  Very  grave  questions,  however,  have 
been  made  as  to  what  powers  were  conferred  upon  the  com- 
mission by  the  terms  of  the  act,  and  as  to  the  construction  of 
the  di lfe rent  sections  of  the  act  in  relation  thereto. 

As  will  be  seen  from  the  cases  infra,  grouped  under  the 
different  sections  of  the  act,  the  powers  of  the  commission 
have  been  construed  by  the  Supreme  Court  to  be  materially 
different  from  the  powers  claimed  and  exercised  by  the  com- 
mission during  the  first  years  of  its  existence.  Thus,  the  com- 
mission has  no  power  to  make  maximum  and  minimum  rates 
for  the  future,  and  the  judicial  construction  of  the  long  and 
short  haul  clause  in  section  four  of  the  act,  so  that  the  compe- 
tition between  the  carriers  creates  substantially  different  cir- 
cumstances and  conditions  within  the  meaning  of  this  section 
and  has  materially  curtailed  the  jurisdiction  of  the  commission 

'For  a  comprehensive  and  accu-  the  evils  that  usually  accompany 
rate  statement  of  the  condition  of  monopolies  soon  began  to  show  them- 
the  state  regulation  of  railroads  at  selves,  and  were  the  cause  of  loud 
and  prior  to  the  adoption  of  the  in-  complaints.  The  companies  owning 
terstate  commerce  act,  see  Hadley's  the  railroads  were  charged,  and  some- 
"  Kail  road  Transportation,  its  History  times  truthfully,  with  making  unjust 
and  its  Laws,''  first  published  in  1SS3.  discriminations betweenshippersand 
See  also  report  of  Windom  to  U.  S.  localities,  with  making  secret  agree- 
Senate,  1874,  (Senate  Report  No.  307,  ments  with  some  to  the  detriment  of 
-i:Jrd  Congress,  1st  Session).  Cullom  other  patrons,  and  with  making  pools 
Report  (Senate  Report  No.  46,  49th  or  combinations  with  each  otlier, 
Congress,  1st  Session).  Hepburn  Re-  leading  to  oppression  of  entire  com- 
port. New  York  Legislature  of  1879.  munities.     .     .     .     As  the  powers  of 

In  the  Import  Rate  case,  162  U.  S.  states  were  restricted  to  their  own 

21  1.  40  L.  Ed.  944,  the  supreme  court  territories  and  did  not  enable  them 

in    referring  to  the  causes  for  the  efficiently   to  control   the   manage- 

enactment  said:  ment   of   great   corporations  whose 

■■They  chiefly  gre%v  out  of  theuseof  roads  extend  throughout  the  entire 

railroads  as  the  principal  modern  in-  country,    there   was  a    general    de- 

>tnimentalities  of  commerce.  While  mand  that  congress,  in  the  exercise 

shippers  of  merchandise  were  under  of  its  plenary  power  over  the  subject 

no  legal  necessity  to  use  railroads  of  foreign  and  interstate  commerce, 

practically  they  were.    .    .     .    From  should  deal  with  the  evils  complain- 

til.-  very   nature  of  the  case,  there-  ed of  by  a  general  enactment,  and  the 

fore,  railroads  were  monopolies,  and  statute   in   question  was  the  result.' 


§   17. J       FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  61 

under  the  act.  The  commission  can  declare,  subject  to  the 
approval  of  the  court,  a  specilic  rate  unreasonable,  but  it  ran 
not  declare  and  enforce  any  substituted  rate  as  reasonable. 

The  supreme  court  has  approved  the  language  of  Mr.  Jus- 
tice Jackson,  who  said  in  one  of  the  early  cases  under  the  act:1 

"Subject  to  the  two  leading- prohibitions  that  their  charges- 
shall  not  be  unjust  or  unreasonable,  and  that  they  shall  not 
unjustly  discriminate,  so  as  to  give  undue  preference  or  disad- 
vantage to  persons  or  traffic  similarly  circumstanced,  the  act 
to  regulate  commerce  leaves  common  carriers  as  they  were  at 
the  common  law,  free  to  make  special  contracts  looking  to  the 
increase  of  their  business,  to  classify  their  traffic,  to  adjust  and 
apportion  their  rates  so  as  to  meet  the  necessities  of  commerce, 
and  generally  to  manage  their  important  interests  upon  the 
same  principles  which  are  regarded  as  sound,  and  adopted  in 
other  trades  and  pursuits." 

This  judicial  construction  of  the  act  has  led  to  agitation  for 
its  amendment,  so  as  to  give  the  commission  a  more  effective 
control  in  the  enforcement  of  reasonable  rates,  and  also  in  ex- 
pediting procedure  in  the  enforcement  of  the  act.-  The  com- 
mission has  also  contended  in  its  successive  annual  reports  that 
the  evils  which  are  sought  to  be  remedied  by  the  act,  included 
not  only  the  discriminations  between  shippers  and  localities- 
in  the  enforcement  of  established  rates,  but  also  the  establish- 
ment and  maintenance  of  rates  which  in  themselves,  or  as  be- 
tween localities  and  kinds  of  traffic,  were  unreasonable.3 

It  has  developed  also  in  the  railroad  history  of  the  country 
since  the  enactment  of  the  Interstate  Commerce  Act  and  in  the 
discussions  before  the  commission  and  in  the  courts,  as  well  as 
before  the  committees  of  congress,  that  what  the  public  good 
really  requires  is  not  only  reasonableness,  but  also  stability  in 

1  Interstate  Commerce  Commission  the  cases  only  reached  the  supreme 
v.  B.  &  O.  R.  Co.,  43  Fed.  Rep.  47  court  through  the  circuit  court  of 
(1890).  appeals.     -Since    that  time   the  pro- 

2  The  delays  of  the  law  were  for-  cedure  has  been  materially  expe- 
cibly  illustrated  in  the  fact  that  it  dited,  especially  since  the  so-called 
was  not  until  1897,  ten  years  after  Expedition  Act,  infra,  §  349. 

the  passage  of  the  act,  that  the  judi-  a  See  annual  report  of  the  commis- 
cial  construction  was  definitely  es-  sion  recommending  amendments; 
tablished  as  to  the  short  and  long  also  final  report  of  industrial  corn- 
haul  and  the  powers  of  the  commis-  mission,  1902,  vol.  19,  pp.  259,  419.  481. 
sion  in  making  rates.     At  this  time 


(62  FEDEEAL    REGULATION    OF    INTERSTATE    COMMERCE.       [§   48. 

railroad  rates.  The  prohibition  of  pooling  in  section  5  {infra, 
i  68)  of  the  act  has  been  a  .powerful  influence  in  promoting 
the  effectual  elimination  of  competition  through  consolida- 
tions and  practical  control  of  competitors  through  community 
of  interest.  The  device  of  a  holding  corporation  as  a  means 
•of  effecting  this  control  was  condemned  in  the  Northern  Se- 
curities case,  but  the  tendency  toward  a  practical  elimina- 
tion of  competition  is  nonetheless  clear.  It  has,  therefore, 
been  suggested  with  force  that  as  unregulated  competition 
with  recurring  rate  wars  is  detrimental  to  the  public  as  well 
as  to  the  railroads,  conferences  and  agreements  as  to  rates,  and 
especially  in  the  adjustment  of  the  complicated  relation  of 
rates,  under  the  regulating  supervision  of  some  public  author- 
ity such  as  the  Interstate  Commerce  Commission,  would  greatly 
contribute  to  the  maintenance  of  stable  and  reasonable  rates 
and  thus  to  the  permanent  solution  of  the  pending  difficulties 
of  the  transportation  problems  between  the  railroads  and  the 
public. 

^j  48.  Amendments  and  proposed  amendments  of  the  act. 
Amendatory  acts  have  been  passed  by  congress  in  1SS9,  1893 
and  1903.  The  first  of  these  was  that  of  18S9  and  gave  a 
shipper  an  additional  summary  and  effective  remedy  by  writ 
of  mandamus,  to  compel  the  carrier  to  furnish  equal  facilities 
infra,  §  308).  That  of  1893  remedied  the  difficulty  growing 
out  of  the  inability  to  enforce  self-incriminating  testimony 
(infra,  §  203).  In  1903  was  enacted  the  so-called  Expedition 
Act  {infra,  §  349),  which  materially  expedited  the  procedure 
in  suits  brought  by  the  United  States,  or  suits  prosecuted  by 
direction  of  the  attorney-general  in  the  name  of  the  Interstate 
Commerce  Commission. 

The  amendatory  act  of  February  19,  1903,  known  as  the  El- 
kins  law.  made  very  important  changes  and  materially  enforced 
the.  provisions  against  discriminations,  in  that  it  made  the  pub- 
lished rates  conclusive  against  the  carrier,  every  deviation 
therefrom  being  punishable.  The  scope  of  the  act  was  also 
materially  extended  as  to  the  parties  subject  to  its  provisions. 
fine  was  substituted  for  imprisonment  in  the  penal  provisions 
of  the  act  {infra,  §  310).     , 

None  of  these  amendments  have  affected  the  rate-making 
power  of  the  commission.     A  strong  agitation  has  been  made 


§  48.]        FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  G3 

for  such  an  amendment  to  the  act  as  would  enable  the  com- 
mission to  determine  after  hearing,  not  only  what  was  an  un- 
just and  unreasonable  rate,  regulation  or  practice,  but  at  the 
same  time  to  determine  what  was  just  and  reasonable,  and 
that  such  determination  should  become  operative  without  an 
appeal  to  the  court  as  under  the  present  law,  and  subject  only 
to  be  set  aside  by  a  judicial  review  at  the  instance  of  the  car- 
rier.1 A  special  court  of  transportation  has  also  been  pro- 
posed to  review  the  orders  of  the  commission  in  case  of  appeals. 
Under  the  act  as  it  now  stands,  the  commission  is  an  inves- 
tigating and  prosecuting  administrative  body,  whose  findings 
are  given  a  prima  facie  force  in  judicial  proceedings.  Under 
the  proposed  amendment,  its  finding  would  become  self-en- 
forcing, in  that  it  would  be  binding  upon  the  carrier  unless 
the  court  should,  upon  hearing,  restrain  its  operation.  As  will 
be  hereafter  seen,  questions  of  reasonableness  in  the  adjust- 
ment of  rates  are,  in  the  main,  questions  of  fact  and  often  in- 
volve y^ry  complicated  circumstances,  especially  in  determin- 
ing the  relation  or  interdependence  of  rates  in  our  vast  ter- 
ritory. The  analogies  of  ordinary  litigation  are  not  appli- 
cable, in  that  every  question  of  rates  is  adjusted  to  the  then 
existing  circumstances,  which  may  be,  and  ordinarily  will  be, 
materially  changed  before  the  court  of  final  review  can  act. 
The  doctrine  of  judicial  precedent,  therefore,  has  a  very  lim- 
ited application.  It  is  also  true  that  a  bond  given  by  the  car- 
rier as  a  condition  of  maintaining  a  rate  found  unreasonable 
by  the  commission  or  a  court,  may  be  a  very  inadequate  rem- 
edy to  the  parties  or  industries  really  injured  by  such  rate, 
and  on  the  other  hand,  it  is  also  true  that  the  carrier  would  be 
practically  without  remedy,  if  compelled  to  reduce  a  rate  un- 
der an  order  of  the  commission  which  was  afterwards  set 
aside  on  the  review  in  court.2 

President  Roosevelt,  in  his  mes-  and  also  that  steamship  companies 

sage  of  December,  1904,  recommends  engaged  in  interstate  commerce,  pro- 

the    amendment   of  the   Interstate  tected  in  the  coastwise  trade,  should 

Commerce  Act  by  conferring  on  the  be  held  to  the  observance  of  the  act. 

InterstateCommerceCommission  the  The  act  now  includes  only  railroads 

power  to  revise  rates  and  regulations,  and  water  transportation  connected 

subject  to  judicial  review,  the  nil-  with  railroads. 

ing  of  the  commission  to  go  into  ef-  2The  house  of   representatives  of 

feet  and  remain  in  effect,  unless  and  the   58th  congress,   on   February  9, 

until  reversed  by  a  court  of  review;  1905,  passed  what  was  known  as  the 


64:  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.       [§  48. 

The  fundamental  powers  of  government  are  necessarily  in- 
volved in  the  public  regulation  of  railway  charges  through  the 
orders  of  railway  commissions.  The  supreme  court  said  in  the 
Maximum  Rate  case,1  that  the  power  to  prescribe  a  tariff  of 
rates  is  a  legislative,  and  not  an  administrative  or  judicial  func- 
tion.-' The  power  to  determine  whether  an  existing  rate  is  or  is 
not  reasonable  is  judicial.  Under  the  present  law  the  commis- 
sion is  charged  with  the  administrative  or  executive  fuuction  of 
enforcing  the  law,  and  also  with  quasi  judicial  powers  in  inves- 
tigating and  determining,  subject  to  the  approval  of  the  court, 
the  reasonableness  of  the  rates.  If  to  these  powers  now  exer- 
cised is  added  the  legislative  power  of  making  rates,  the  review- 
ing power  of  the  court  should  extend  to  the  reasonableness  of 
the  rates,  found  unreasonable  by  the  commission  in  the  exer- 
cise of  its  judicial  power,  as  the  necessary  basis  for  the  exercise 
of  its  legislative  power.  "Due  process  of  law"  would  require 
this  power  in  the  court,  whether  in  interlocutory  or  on  final 
hearing.     As   the  question  in  rates  is  ordinarily  one  of  fact 

Townsend-Esch  bill  (H.  R.   18,  58S),  President  from  the  circuit  judges  of 

which    had    been   reported    by  the  the    United   States,    five   additional 

majority  of  the  judiciary  committee  circuit   judges  being  appointed.no 

No.  4093)  as  a  substitute  for  two  from  the  same  circuit,  such  court 

sundry  bills.  The  bill  wasnot  reached  to  have  exclusive  jurisdiction  of  all 

in  the  senate,  and  therefore  failed  of  cases  under  the  act,  its  judgments 

ige.     This   bill   conferred   upon  to  be  final,  except  with  appeal  to  the 

the  commission  the  power  to  name  supreme  court  "  incases  whereunder 

"a  rate,    practice  or  regulation"  in  the  laws  theretofore  in  force,  an  ap- 

place  of  one  found  to  be  unreasona-  peal  or  writ  of  error  lay  from  the  linal 

bie.  the  same  to  take  effect  in  thirty  order,  judgment  or  decree  of  thecir- 

days from  date  of  service  upon  the  cuit  court."' 

carrier,  the  latter   having  the  right  1 107  U.  S.  1.  c.  505,  42  L.  Ed.  255 

within  .sixty  days  to  appeal  to  the  (1897). 

court  of  transportation,  provided  in  2  The  general  rule,  that  courts  will 
the  act  for  a  review  of  the  '-lawful-  not  interfere  with  the  exercise  of 
ness,  justice  or  reasonableness  of  the  the  legislative  power,  but  only  with 
If  the  rate  is  a  joint  one,  the  the  attempted  enforcement  of  such 
commission  was  empowered  to  ap-  legislation  by  the  executive  power 
portion  the  same  if  the  parties  to  when  private  rights  are  invaded,  has 
the  joint  rate  failed  to  agree  within  been  applied  in  the  case  of  the  mak- 
twentydays.  The  commission  would  ing  of  railroad  rates  by  state  com- 
be increased  to  seven  members,  with  missions,  the  courts  declining  to  in- 
salaries  of  ten  thousand  dollars  each  terfere  with  the  rate-making  power 
per  annum,  only  four  from  the  same  before  it  was  exercised.  See  McChord 

d    party"      A  court  of  trans-  v.  L.  &  N.  R.  Co.,  183  U.  S.  483.  46  L. 

on    was  provided   of  five  cir-  Ed.    289   (1902),   reversing  103  Fed. 

cuit  judges,  to  be  appointed  by  the  Rep.  210. 


§  49.]       FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  G5 

onl}7,  the  prima  facie  effect  of  the  finding  of  fact  made  by  the 
commission  extends  to  the  evidentiary  facts,  and  not  to  the 
ultimate  conclusion  of  reasonableness.1  Other  questions  may 
be  suggested  by  this  blending  of  the  distinct  powers  of  gov- 
ernment in  one  tribunal,  which  are  premature  now  to  discuss.2 
§  49.  Regulation  of  bridges  and  ferries  over  navigable 
rivers. — The  broadened  conception  of  the  federal  power  over 
interstate  commerce  in  this  direct  regulation  of  such  commerce 
is  illustrated  in  the  rulings  of  the  Supreme  Court  with  refer- 
ence to  the  building  of  bridges  and  establishment  of  ferries 
over  navigable  rivers,  as  also  in  the  exercise  of  the  legislative 
power  in  authorizing  improvements,  alterations  and  obstruc- 
tions in  public  navigable  waters.  The  power  of  the  state  to 
establish  bridges  over  navigable  and  tide  waters  was  admitted, 
subject,  however,  to  the  paramount  authority  of  congress  to 
declare  a  bridge  an  obstruction  to  navigation,  the  paramount 
authority  of  regulating  bridges  that  affect  the  navigation  of 
the  navigable  waters  of  the  United  States  being  admittedly  in 
congress.3  Thus  in  the  case  cited  the  Wheeling  bridge  con- 
structed across  the  Ohio  river  under  an  act  of  Virginia,  had, 
by  decree  of  the  supreme  court  at  the  suit  of  the  state  of  Penn- 
sylvania, been  declared  in  its  then  condition  an  unlawful  ob- 
struction of  the  navigation  of  the  river  and  in  conflict  with 
the  acts  of  congress  regulating  such  navigation,  and  therefore 
ordered  to  be  elevated  or  abated.  Congress  thereupon  passed' 
an  act  declaring  the  bridge  to  be  a  lawful  structure  in  its  then 
condition  and  elevation,  and  this  act  was  sustained  as  giving 

1  There  is  a  blending  of  the  judicial  sion    has    been    sustained.     Such   a 

legislative  and  administrative  pow-  prima  facie  effect,  however,  might 

ers  in  the  powers  of  railroad   com-  be  far  more  serious  where  the  case  is 

missioners  in  several  of  the  states,  heard  in  court  only  upon  the  record 

The    constitutionality  of   such  acts  made  before  the  commission,  partic- 

has  been  sustained  both  in  the  state  ularly  in  its  possible    bearing  upon: 

and  federal  courts.    See  Express  Co.  the  question  of  interlocutory  relief, 

v.  Railroad  Co.,  Ill  N.   C.  463;  Bur-  if  the  court  is  concluded  by  the  find- 

lington,  etc.  R.  Co.  v.  Dey,  82  Iowa  ings  of  fact  made  by  the  commission, 

312;   Chicago,  etc.  R.  Co.  v.  Jones,  149  -As  to  the  constitutional   limita- 

111.  361 ;  Georgia,  etc.  R.  Co.  v.  Smith,  tions  of  the  rate-making  power  of 

70  Ga.   694.     See  also  the  Railroad  congress,  see  infra,  §  56. 

Commission  Cases,  116  U.  S.  307,  29  L.  3  Pennsylvania  v.   Wheeling,   etc. 

E.  636,  and  infra,  §  91.     In  these  and  Bridge  Co.,  IS  How.  421  (1835),  15  L. 

other  cases,  the  prima  facie  effect  Ed.  435. 
given  to  the  findings  of  the  commit 


66  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.       [§  49. 

full  authority  to  maintain  the  bridge.  The  practice  thereupon 
grew  up  of  building  bridges  by  state  corporations  —  where  the 
rivers  constituted  the  boundary  of  states,  securing  the  concur- 
rent action  of  both  states, —  and  at  the  same  time  obtaining 
an  act  of  congress  that  the  bridge,  when  constructed  accord- 
in-  to  its  provisions,  should  be  a  lawful  structure  and  not  an 
obstruction  to  navigation. 

In  1894  however  it  was  held1  that  congress  had  full  au- 
thority to  incorporate  a  bridge  company  for  the  construction 
of  a  bridge  across  a  navigable  river,  and  sustained  the  validity 
of  the  North  River  Bridge  Company  for  the  construction  of  a 
bridge  across  the  Hudson  river  between  the  states  of  New 
York  and  New  Jersey.  The  court  said  that  it  was  not  neces- 
sary  for  congress  to  recognize  and  approve  bridges  erected  by 
authority  of  two  states  across  navigable  waters  between  them, 
but  could,  at  its  discretion,  use  its  sovereign  power,  directly  or 
through  a  corporation  created  for  that  object,  to  construct 
brido-es  for  the  accommodation  of  interstate  traffic  by  land,2 
as  it  undoubtedly  may  do  to  improve  the  navigation  of  rivers  for 
the  convenience  of  such  traffic  by  water.  In  the  case  of  this 
North  River  Bridge  Company  the  act  made  provision  for  the 
condemnation  of  lands,  for  the  construction  and  maintenance 
of  the  bridge  and  its  approaches,  and  for  just  compensation  to 
the  owners. 

In  the  case  of  ferries  there  is  no  such  necessity  of  securing 
the  sanction  of  congress,  as  there  is  no  such  obstruction  to 
navigation.3  But  ferries  as  well  as  bridges  are  instrumentali- 
ties of  interstate  commerce  when  they  cross  rivers  which  are 
the  boundaries  of  states,  and  as  such  are  exempt  from  state 
control.4 

In  a  recent  case5  the  court  held  that  an  unconstitutional 
burden  was  imposed  on  interstate   commerce   by  an   Illinois 

i  Luxton  v.  North  River  Bridge  4  Covington,  etc.  Bridge  Co.  v.  Ken- 
Co.,  153  U.  S.  525    L894  ,  38  L.  Ed.  808.  tucky,  154  U.  S.  204,  1.  c,  219.  3s   L, 

2  YY ill imette  Bridge  Co.  v.  Hatch,  Ed.  962  (1899);  Gloucester  Ferry  ( '<>. 

125  U.  S.  1  (1888),  31  L.  Ed.  029:  Cali-  v.  Pennsylvania,  114  U.  S.  196  (1885), 

fornia  v.  Pacific  Ry.  Co..  127  U.  S.  1  29  L.  Ed.  158. 

32  l,  Ed  150.  5St.   Clair    County    v.    Interstate 

:;  Covington  &  Cincinnati  Bridge  Transfer  Co.,  192  U.  S.  454  (1904),  48 

Co.  v.  Kentucky,  154  I'.  S.  204  (1899),  L.  Ed.  518. 
38  L.  Ed.  902. 


§   50.]       FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  67 

statute  penalizing  the  carrying  on  of  a  ferry  without  a  license, 
when  applied  to  the  transportation  of  loaded  or  unloaded  rail- 
road cars  across  the  Mississippi  river  from  the  Illinois  to  the 
Missouri  side.  The  court  said  that  there  was  an  essential  dis- 
tinction between  a  ferry  in  the  restricted  and  legal  sense  of 
the  term,  and  the  transportation  of  railroad  cars  across  a 
boundary  river  between  two  states,  constituting  interstate  com- 
merce, and  that  such  transportation  could  not  be  subjected  to 
burdens  imposed  by  a  state,  which  were  direct  burdens  upon 
interstate  commerce.  In  this  case  the  power  to  grant  the 
license  was  made  discretionary;  citizens  of  Illinois  were  to  be 
preferred  and  the  licensee  could  be  required  to  conduct  a  gen- 
eral ferry  business.  The  court  therefore  found  it  unnecessary 
to  consider  whether  the  broad  declarations  of  the  power  of  the 
state  to  regulate  ferries  over  navigable  rivers  constituting 
boundaries  between  states,  supported  in  the  earlier  cases,  had 
not  been  modified  by  the  rule  laid  down  in  the  Gloucester 
Ferry  case  :  and  the  Covington  Bridge  case. 

§  50.  Regulation  of  interstate  telegraph  companies. — Al- 
though congress  has  not  provided  for  a  national  regulation  of 
interstate  telegraph  and  telephone  as  it  has  for  that  of  inter- 
state carriers,  the  interstate  business  of  such  companies  is 
controlled  by  the  rules  of  the  common  law.-'  which  are  opera- 
tive upon  all  interstate  commercial  transactions,  except  so  far 
as  they  are  modified  by  congressional  enactment,  and  such 
common  law  rights,  as  protection  against  unjust  discrimination, 
may  be  enforced  in  the  state  as  well  as  in  the  federal  courts. 

Congress  has  legislated  from  time  to  time  in  relation  to  tele- 
graph lines  in  interstate  commerce,  but  more  particularly  with 
reference  to  the  grant  of  telegraph  privileges  to  the  govern- 
ment-aided Pacific  railroads.  Thus,  in  1862,3  congress  included 
the  right  to  construct,  maintain  and  operate  telegraph  lines  in 
its  grant  of  the  charters  to  build  Pacific  railroads. 

Subsequently,  in  1S06,4  congress  granted  to  any  telegraph 
company  organized  under  the  laws  of  any  state  the  right  to 
construct,  maintain  and  operate  lines  of  telegraph  through  and 

1  Conway  v.    Taylor,    Executor,    1        -  Western    Union   Tel   Co.  v.  Call 
Black,  603, 17  L.  Ed.  191  (1861);  Fan-     Pub.  Co.,  supra. 
ning  v.  Gregoire,  16  How.  524,  14  L.         3  Act  of  July  1,  1S62. 
Ed.  1043  (18.33).  *  3  Compiled  Statutes,  p.  3579,  Title 

65. 


68  FEDERAL    REGULATION    OV    INTERSTATE    COMMERCE.       [§   50. 

over  any  portion  of  the  public  domain  of  the  United  States, 
over  and  along  any  of  the  military  or  post  roads  of  the  United 
States  which  have  been  or  may  hereafter  be  declared  such  by 
law,  and  over,  along  and  across  any  of  the  navigable  waters 
of  the  United  States.1 

This  act  of  1866  was  construed  by  the  Supreme  Court 2  as,  in 
:.  amounting  to  a  prohibition  of  all  state  monopolies  in 
the  telegraph  business  between  the  states.  The  court  said  that  it 
was  a  legitimate  regulation  of  commercial  intercourse  between 
the  states  and  was  proper  legislation  to  carry  into  execution 
the  powers  of  congress  over  the  postal  service.  The  statute 
did  nut  extend  only  to  such  military  and  post  roads  as  were 
upon  the  public  domain.  The  state  law  of  Florida  conferring 
exclusive  privileges  upon  a  state  telegraph  company  was  de- 
clared to  be  in  conflict  with  the  legislation  of  congress. 

This  act  of  1866  was  permissive  only  The  privilege  con- 
ferred carried  with  it  no  exemption  from  the  ordinary  burdens 
of  taxation  in  a  state  where  the  companies  owned  or  operated 
lines  of  telegraph,1  nor  did  it  carry  with  it  any  unrestricted 
right  to  appropriate  public  property  of  a  state  or  city,  but  it 
was  like  any  other  franchise,  to  be  exercised  in  subordination 
to  public  as  well  as  private  rights.4 

■  act  of  1S0G  does  not  grant  to  telegraph  companies  ac- 
cepting its  provisions  the  power  of  eminent  domain  over  the 
private  property  of  railroad  companies.  A  railroad  right  of 
way  is  not  public  property  though  often  called  a  highway  and 
subject  to  a  certain  extent  to  state  and  federal  control.  A  tele- 
graph company  cannot,  therefore,  under  the  act  of  1866,  occupy 
a  railroad  right  of  way  except  by  the  consent  of  the  railroad 

1  The  aft  also  provided  for  the  use  and  one  by  the  four  previously  se- 

of  matt-rials  from  the  public   lands,  lected. 

reserve  I  to  the  government  priority  2Pensaeola  Telegraph  Co.  v.  West- 

other  business  and  further  pro-  ern  Union  Telegraph  Co.  96  U.  S.  1 

I  for  the  purchase  by  the  United  (1877),  24  L.  Ed.  708.  711. 

for  postal,  military  or  other  3  Western  Union  Tel.  Co.  v.  Mass- 
purposes,  all  the  property  and  effects  achusetts,  125  U.  S.  530  (1888),  31  L. 
of  companies  acting  under  the  act  Ed.  790. 

at  an  appraised  value  to  be  ascer-  4  St.  Louis  v.  Western  Union  Tel. 

i    by   five  competent,  disinter-  Co.,  148  U.  S.  92  (1893),  37  L.  Ed.  380: 

ested  persons,  two  of  whom  were  to  Western  Union  Tel.  Co.  v.  Ann  Arbor 

•ted  by  the  postmaster  gene-  R.  R.  Co.  178  U.  S.  239,  44  L.  Ed.  IUjI 

ral,  two  by  the  company  interested  (1900). 


£   51.]       FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  69 

or  under  the  power  of  eminent  domain;  and  in  the  absence  of 
•  federal  or  state  provision  for  the  exercise  of  such  right  of  emi- 
nent domain,  the  railroad  right  of  way  can  be  occupied  with 
telegraph  poles  only  with  the  consent  of  the  railroad  company.1 

The  Interstate  Commerce  Commission  is  vested  with  juris- 
diction over  the  government-aided  telegraph  lines  constructed 
under  the  Pacific  Railroad  Act  by  the  act  of  188S,2  whereunder 
the  commission  is  required  to  ascertain  the. facts  and  deter- 
mine and  order  what  arrangement  should  be  made  for  the  in- 
terchange of  business  required  by  the  act,  and  it  was  made  the 
duty  of  the  railroad  and  telegraph  companies  to  file  with  the 
Interstate  Commerce  Commission  all  contracts  relating  to  the 
control  and  use  of  their  telegraph  lines  and  to  file  annual  re- 
ports with  the  commission  as  to  their  condition  and  business. 
The  Supreme  Court,  construing  this  act,  held  that  it  was  a  law- 
ful exercise  of  the  powers  of  congress  and  that  a  contract  be- 
tween the  Union  Pacific  Railway  and  the  Western  Union  Tele- 
graph Company,  giving  the  latter  company  control  of  all  tele- 
graph business  on  its  roads,  was  void.  The  act  in  this  case  re- 
quired that  the  railroads  should  exercise  by  themselves  alone 
all  the  telegraph  franchises  conferred  upon  them,  and  to  allow 
equal  facilities  to  connecting  lines  on  terms  just  and  equitable ; 
the  right  of  connection  with  equal  facilities  being  given  to  anv 
railroad  which  had  accepted  the  provisions  of  the  act  of  1866.3 

§  51.  Interstate  telephone  companies  not  included  in  the 
act  of  I860. —  The  provisions  of  the  Telegraph  Act  of  July  2±, 
18G6,  did  not  apply  to  interstate  telephone  companies  whose 
business  is  that  of  transmitting  articulate  speech  between  dif- 
ferent points.4     The  telephone  company  in  this  case  claimed 

1  Western  Union  Tel.  Co.  v.  Penn-  third  the  cost  of  construction  and  to 

sylvania  R.  Co.  25  Sup.  Ct.  Rep.  151-  transport    the     property    and     em- 

157  (1904).  ployees  of  the  telegraph  company  in 

-  The  Act  of  August?.  1888,  p.  3582.  constructing  and   maintaining   the 

3  See  also  United  States  v.  North-  line,  free  of  charge.     This  case  was 

em  Pacific  R.  Co.  120  Fed.  Rep.  546,  therefore    distinguished    from    the 

where  the  circuit  court  held  that  a  Union  Pacific  case, 

contract  of  the  Northern  Pacific  R.  4  Richmond  v.  Southern  Bell  Tele- 

Oo.  with  the  Western  Union   Tele-  graph  &  Telephone  Co.,  174  U.  S.  761, 

graph  Company  was  not  violative  of  43  L.  Ed.  1162   (1899),  reversing  the 

the  act,  as  it  provided  for  the  exclu-  circuit  court,  78  Fed.  Rep.  858,  and 

sive  use  of  one  or  two  wires  by  the  the  circuit  court  of  appeals,  85  Fed. 

railroad  company,  for  which  the  rail-  Rep.  19,  and  28  C.  C.  A.  659. 
road  company  agreed    to  pay  one- 


70  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.        [§  52. 

that  it  was  entitled,  under  the  act  of  1S66,  to  occupy  the  streets 
of  Richmond  with  its  lines  without  the  consent  and  against 
the  will  of  the  municipal  authorities  of  the  city. 

This  claim  was  sustained  by  the  circuit  court,  but  the  Cir- 
cuit Court  of  Appeals,  while  holding  that  the  plaintiff  was  en- 
titled to  avail  itself  of  the  provisions  of  the  act  of  1866,  ad- 
judged that  the  rights  and  privileges  granted  by  that  act  are 
to  be  enjoyed  and  subject  to  any  lawful  exercise  of  the  police 
power  belonging  to  the  state,  or  one  of  its  municipalities.  The 
Supreme  Court  held  that  the  Circuit  Court  of  Appeals  was  cor- 
rect in  this  view  as  to  the  scope  and  effect  of  the  act  of  1S66, 
but  that  court,  as  well  as  the  circuit  court,  was  in  error  in 
holding  that  the  act  of  1866  was  applicable  to  telephone  com- 
panies. The  court  said  it  was  immaterial  that  the  business 
charter  described  it  as  a  telephone  and  telegraph  company.  It 
might  be  true,  said  the  court,  that  if  the  telephone  had  been 
known  and  in  use  when  the  act  was  passed,  congress  would 
have  expressed  in  its  provisions,  companies  employing  instru- 
ments for  electrically  transmitting  articulate  speech,  but  that 
nothing  in  1866  was  known  of  the  telephone,  as  Bell's  inven- 
tion was  not  made  public  until  1876.  When,  therefore,  the 
act  of  1S66  speaks  of  telegraph  companies,  it  only  meant  such 
companies  as  employed  the  means  thus  used  or  embraced  by 
existing  inventions  for  transmitting  by  sounds  or  by  signs  and 
writing. 

There  is  no  federal  statute  regulating  interstate  communica- 
tion by  telephone,1  though  it  is  clearly  included  in  interstate 
commerce,  as  defined  by  the  courts. 

§  52.  The  release  of  the  federal  regulating  power. —  In- 
terstate commerce  may  be  regulated  not  only  by  the  action  of 
congress,  but  also  by  its  inaction,  as  where  the  subjects  require 
uniform  regulation,  the  inaction  is  equivalent  to  a  declaration 
that  the  commerce  must  be  free.  There  is  also  a  form  of  res- 
ulation,  already  referred  to,  where  congress  divests  particular 
subjects  of  their  commercial  character,  thus  subjecting  them, 
when  delivered  to  their  consignees  in  the  original  packages, 
to  the  police  power  of  the  state  (supra,  §  9).  It  was  con- 
tended in  the  liahrer  Case2  that  the  Wilson  Act  of  1890  was 

i  The  act   of  February  28,1902,3    and  telephone    lines  through  Okla- 
Comp.  Stats.  2-2G.  grants  the  right  of    homa  and  Indian  Territories. 
way  for  the  railroad  and  telegraph        2  Supra,  §  17. 


§   53.]       FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  71 

void,  as  the  power  of  regulation  vested  in  Congress  could  not 
be  delegated  to  the  states.  The  court  held  that  this  was  not  a 
delegation  of  the  federal  power,  but  was  merely  a  designation 
that  certain  subjects  of  interstate  commerce  should  be  gov- 
erned by  a  rule  which  divested  them  of  that  character  at  an 
earlier  period  of  time  than  would  otherwise  be  the  case.  Con- 
gress, said  the  court,  did  not  use  terms  of  permission  to  the 
states  to  act,  but  simply  removed  an  impediment  to  the  en- 
forcement of  the  state  laws  created  by  an  absence  of  specific 
utterance  on  its  part  in  respect  to  imported  packages  in  their 
original  condition.  It  imparted  no  power  to  the  state  not  then 
possessed,  but  allowed  imported  property  to  fall  at  once  upon 
arrival  within  the  local  jurisdiction. 

In  the  later  Iowa  case,1  May,  1S9S,  the  court,  in  holding 
that  the  term  "arrival"  meant  delivery  to  the  consignee,  said 
that  the  act  of  1890  was  not  to  be  construed  as  authorizing- 
states  or  state  laws  to  forbid  the  bringing  into  the  state  at  all. 
In  other  words,  the  power  of  the  State  did  not  attach  to  the 
acts  until  the  termination  of  the  interstate  commerce  ship- 
ment, and  that  did  not  occur  until  the  actual  delivery  of  the 
shipment  to  the  consignee.  The  court  said  this  construction 
of  the  act  of  1S90  rendered  it  unnecessary  to  consider  whether, 
if  the  act  of  Congress  had  submitted  the  right  to  make  inter- 
state commerce  shipments  to  state  control,  it  would  be  repug- 
nant to  the  constitution. 

The  right  of:  Congress,  therefore,  as  adjudged  in  these  cases, 
to  surrender  its  regulating  power  only  extends  to  the  limita- 
tion of  the  original  package  rule  as  to  a  certain  class  of  com- 
modities, so  that  they  should  lose  their  interstate  character 
and  become  subject  to  the  police  power  of  the  state  when  de- 
livered to  the  consignee,  and  not  when,  as  is  the  case  with 
other  shipments,  the  original  package  is  broken  up  or  sold  and 
thus  becomes  merged  in  the  general  mass  of  property  in  the 
state. 

§  53.  Regulation  by  the  delegation  of  power. —  Congress 
in  its  legislation  upon  interstate  commerce  has  vested  in  the 
Interstate  Commerce  Commission  certain  discretionary  power 
in  the  enforcement  of  the  statutes.  Thus,  in  the  Interstate 
Commerce  Act  in  section  4,  the   commission  is  authorized  in 

1  Rhodes  v.  Iowa,  supra,  page  2G,  note  4,  page  27,  note  3. 


72  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.       [§54. 

special  cases,  after  investigation,  to  grant  an  exemption  to  the 
carriers  from  the  requirement  of  the  section,  that  no  greater 
rate  shall  be  charged  under  substantially  similar  circumstances 
and  conditions  for  a  shorter  than  for  a  longer  distance  over 
the  same  line,  and  the  commission  is  authorized  from  time  to 
time  to  prescribe  the  extent  to  which  such  carrier  may  be  re- 
lieved  from  the  operation  of  said  statute.  Also  in  the  so- 
called  Safety  Appliance  Act,  the  commission  is,  under  section  7, 
authorized  to  grant  an  extension  of  time  within  which  tiie 
common  carrier  may  comply  with  the  requirement  of  equip- 
ment with  automatic  car  couplings  prescribed  by  the  act. 

Under  the  act  of  March  3, 1S'.»1».  concerning  the  construction 
of  bridges  over  navigable  rivers,  the  secretary  of  war  is  not 
only  vested  with  the  duty  of  approving  plans  for  the  construc- 
tion of  bridges,  but  is,  under  section  11,  given  the  power  to 
establish  harbor  lines,  and  under  section  3  to  permit  in  his  dis- 
cretion temporary  deposits  in  the  rivers. 

These  cases  seem  to  be  within  the  rule  declared  by  the  Su- 
preme Court1  in  sustaining  the  powers  conferred  upon  the  Pres- 
ident by  section  3  of  the  act  of  1890  to  suspend  by  proclama- 
tion the  free  introduction  of  certain  articles  when  satisfied 
that  the  country  producing  them  imposes  duties  upon  the 
products  of  the  United  States.  The  court  said  this  was  not  a 
delegation  of  legislative  power,  but  merely  made  the  president 
the  agent  of  the  law-making  department  to  ascertain  and  de- 
clare the  event  upon  which  its  expressed  will  was  to  take 
effect,  lie  had  no  discretion  in  the  premises  except  in  respect 
to  the  duration  of  the  suspension  order,  and  that  related  only 
to  the  enforcement  of  the  policy  established  by  congress. 

§  54.  Additional  acts  of  Congress  in  the  regulation  of 
commerce. —  Congress  in  recent  years  has  enacted  several  laws 
in  the  regulation  of  interstate  commerce.  The  act  establish- 
ing  a  Bureau  of  Animal  Industry,  for  preventing  the  Ex- 
portation of  Diseased  Cattle,  and  for  the  extirpation  of  dis- 
ease among  domestic  animals,  enacted  May  29, 1884,2  was  held 
by  the  supreme  court :!  not  to  cover  the  subject  of  transporta- 

sld  v.  Clark.  !  I:;  I'.  S.  649(1892),  21  Compiled  Statutes,  p.  299;  see 
36  I-  Ed.  294.     See   also    Hatfield  v.  also  Act  of  August  30,  1890,  3  Corn- 
er ranahan,  L92  U.  S.  470  (1904),  48  L.  piled  Statutes,  3182. 
I ;  |.  535,  :'  Reid  v.  Colorado,  supra,  p.  41,  n.  1. 


.s'   54.]         FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE  73 

tion  of  live  stock  from  state  to  state,  so  as  to  preclude  the  en- 
actment of  state  legislation  for  the  protection  of  the  property 
of  the  state. 

In  1S93  congress  exercised  its  power  of  regulation  in  another 
class  of  cases  b}r  the  passing  of  the  act  to  promote  the  safety 
of  the  employees  and  travelers  upon  the  railroads,  and  com- 
pelling common  carriers  who  engaged  in  interstate  commerce  to 
equip  their  cars  with  automatic  couplers  and  brakes,  and  their 
locomotives  with  driving  wheel  brakes.   See  infra,  §  354  et  seij. 

In  1901  was  passed  the  act  requiring  common  carriers  en- 
gaged in  interstate  commerce  to  make  full  reports  of  all  acci- 
dents to  the  Interstate  Commerce  Commission.  (Act  of  March  '■'>, 
1901,  infra,  §  372)..1  This  act  in  its  requirement  of  reports  is 
not  limited  to  accidents  to  trains  engaged  in  interstate  com- 
merce, but  includes  all  accidents  on  the  railroads  "eno-aowl  in 
interstate  commerce;"  and  a  railroad  is  so  engaged  within 
the  regulating  power  of  congress  when  it  makes  through  ship- 
ments by  through  routing  in  interstate  commerce.  This  act 
does  not  seem  to  have  been  judicially  construed. 

Recent  legislation  by  Congress  in  the  regulation  of  interstate 
commerce  includes  the  prohibition  of  interstate  carriage  of 
obscene  literature,'2  of  game  killed  in  violation  of  state  laws, 3 
condemned  carcasses  of  animals,4  lottery  tickets,"' dairy  products 
falsely  labeled  or  branded  as  to  the  state  or  territory  in  which 
produced.0 

Congress  has  also  empowered  the  Secretary  of  Agriculture  to 
establish  rules  concerning  exportation-  and  transportation  of 
live  stock  and  issue  certificate  of  freedom  from  disease  and 
providing  for  admission  of  cattle  so  certified  into  any  state 
without  further  inspection  or  fees.7 

!The  Interstate    Commerce  Com-  -Act  of  February  2,  1897,  3  Comp. 

mission  in  its  annual  report  for  1904  Stat.  3181. 

discusses  at  length  the  subject  of  the  3Act   of    May   25.    1900,  .3   Comp. 

increasing  number  of  railroad  acci-  Stat.  31S1.  • 

dents  and  strongly  recommends  leg-  4Act  of  May  2,  1895,  3  Comp.  Stat, 

islation   by  congress  requiring  the  3192. 

adoption  of  the  block  system  and  the  5  Supra,  g  6. 

block  signal.    Also  recommends  that  6  Act  of  July  1,  1902,  Supp.  Comp. 

She  reports  of  accidents  in  the  an-  Stat.  p.  371. 

nual  reports  of  the   commission  be  "  Act   of  February  2,   1903,   Supp. 

abolished  and  that  the  law  should  be  Comp.  Stat.  p.  372. 
made  to  require  monthly  reports  to 
cover  all  classes  of  accidents. 


T-t  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.       [§   55 

The  police  power  of  the  state  was  extended  to  oleomargar- 
ine, butterine,  etc.,  as  it  had  theretofore  been  extended  to  liq- 
uors in  the  "original  package."'1 

A-  to  the  anti-trust  legislation  of  congress  and  also  legisla- 
tion in  relation  to  the  relations  of  labor  and  capital  in  inter- 
state commerce,  see  chapter  IV,  infra,  "Business  and  Labor 
Combinations  in  Interstate  Commerce." 

Congress  has  also  legislated  extensively  in  regard  to  trans- 
portation by  water  in  the  navigation  acts.  The  Interstate 
Commerce  Act  only  regulates  water  transportation,  when  the 
transportation  is  partly  by  railroad  and  partly  by  water  under 
a  common  control  or  management. 

§55.  The  Department  of  Commerce  and  Labor. —  In  190& 
congress  established  the  department  of  commerce  and  labor, 
the  secretary  at  the  head  being  made  one  of  the  executive 
officers  of  the  government  and  as  such  one  of  the  President's 
advisers  known  as  the  Cabinet.2 

This  department  included  several  of  the  bureaus  theretofore 
included  in  other  departments,  and  among  others  the  De- 
partment of  Labor,  which  had  been  established  by  congress  in 
1---. 

Section  5  of  this  act  establishes  a  Bureau  of  Manufactures, 
and  section  G  a  Bureau  of  Corporations,  which  is  vested  with 
the  same  power  and  authority  of  investigation  in  respect  to- 
corporations  and  combinations  engaged  in  interstate  commerce 
as  is  conferred  on  the  Interstate  Commerce  Commission  in  re- 
spect to  railroads.  The  commissioner  of  corporations  is  given 
powers  of  investigation,  with  the  right  to  summon  witnesses 
and  call  for  the  production  of  books  and  papers,  subject  to  the 
same  immunities  against  the  enforcement  of  self-incriminating 
testimony,  as  is  contained  in  the  act  of  1893  concerning  the 
Interstate  Commerce  Act.4 

This- act  includes  in  section  6,  as  subject  to  the  investigation 
of  the  commissioner  of  corporations,  corporations  engaged  in 
insurance.     It  has  been  adjudged,  supra,  §  8,  in  successive  opin- 

»Act  of  May  9,  1902,  Supp.  Comp.  see  infra,  §48;  also  Interstate  Com- 

Stat.  p.  369.  merce  .Commission  v.   Brimson,  154 

-  Act  of  February  18,  1903,  Supp.  U.   S   447,  38  L.  Eel.  1047;  Interstate* 

Comp.  Stats  p.  41.  Commission  v.  Baird,  194  U.  S.  25, 

■  Infra,  \  351  - 1  seq.  48  L.  Ed.  860,  infra,?  26R 

4  As  to  the  construction  of  this  act, 


§   55.]       FEDERAL    REGULATION    OK    INTERSTATE    COMMERCE.  75' 

ions  of  the  Supreme  Court,  that  insurance  is  not  commerce  in 
any  of  its  forms.1 

This  act  has  not  been  judicially  construed.  The  federal 
government  has  obviously  no  visitorial  power  over  corporations 
which  it  does  not  create,  and  the  power  of  the  commissioner 
to  make  investigations  or  to  compel  reports  would  be  clearly 
limited  to  transactions  in  interstate  commerce,  to  the  same 
extent  as  the  powers  of  the  interstate  commerce  commission 
are  limited  to  transactions  in  interstate  as  distinguished  from 
domestic  commerce. 

While  the  powers  of  the  Bureau  of  Corporations  are  described 
mainl}7  by  reference  to  those  contained  in  the  Interstate  Com- 
merce Act,  the  latter  is  a  quasi  judicial  body,  in  the  sense  that 
it  is  empowered  to  hear  complaints  and  make  charges  and  find- 
ings for  judicial  investigation  and  determination,  while  the 
Commissioner  of  Corporations  is  at  the  head  of  an  administra- 
tive department  of  the  government.  The  powers  of  investiga- 
tion vested  in  this  bureau  are  to  be  used  for  the  purpose  of 
assisting  the  legislative  department  in  making  laws,  and  the 
executive  department  in  enforcing  them.  The  commissioner 
has  no  judicial  powers,  and  within  the  scope  of  his  duties  must 
appeal  to  the  courts  for  the  enforcement  of  his  orders.2     The 

rThe  Commissioner  of  Corpora-  2  It  is  said  in  the  very  exhaustive 
tionsin  his  first  annual  report,  De-  first  annual  report  of  the  coramis- 
cember  1904,  says  that  if  this  purpose  sioner,  Hon.  James  E.  Garfield,  "  that 
is  irrevocably  settled,  the  powers  of  many  of  the  specific  powers  of  the 
the  commissioner  relative  thereto  are  Interstate  Commerce  Commission 
of  purely  a  statistical,  voluntary,  are  clearly  inapplicable  to  the  pur- 
non-compulsory  nature.  He  sug-  pose  of  the  Bureau  of  Corporations, 
gests  however,  that  in  view  of  the  He  cannot  make  investigations  or 
rapid  developement  of  the  insurance  procure  and  enforce  information  by 
business,  its  extent,  the  enormous  means  of  his  compulsory  powers  for 
amount  of  money  and  the  diversity  the  purpose  of  enforcing  the  penal 
of  interests  involved  and  the  pres-  provisions  other  than  those  contained 
ent  business  methods,  that  under  ex-  in  the  organic  act  of  the  bureau, 
isting  conditions,  that  insurance  is  nor  can  he  furnish  information  so 
commerce  and  may  be  subject  to  procured  to  private  individuals  for 
federal  regulation  through  affirm-  their  personal  use.  His  compulsory 
ative  action  by  congress.  investigatory  powers  are  further  lim- 
it is  difficult  to  see,  however,  if  ited  by  the  rights  of  privacy  of  the 
the  supreme  court  adheres  to  its  pre-  citizen  which  may  not  be  invaded  by 
sent  rulings,  how  the  jurisdiction  inquiry  except  for  a  definite, constitu- 
of  Congress  can  be  enlarged  by  its  tional  and  legal  object,  and  only  such 
own  declarations  of  the  extent  of  its  matters  may  be  investigated  as  re- 
powers,  late  to  and  give  information  upon 


76  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.       [§56. 

statute  has  not  been  judicially  construed,  nor  has  any  appeal 
been  made  to  the  courts  to  enforce  its  powers  of  investigation 
by  compulsory  testimony  or  production  of  books.1 

§  ")(>.  The  unexercised  federal  power. —  In  determining  the 
possible  limits  of  the  unexercised  federal  power  in  the  regula- 
tion of  commerce,  there  is  comparatively  little  in  the  way  of 
direct  judicial  authority.  The  Supreme  Court  has  frequently 
been  called  upon  to  decide,  and  has  decided,  what  the  states 
cannot  do.  and  it  is  from  the  expressions  in  these  negative 
opinions  that  we  are  compelled  to  rely  in  determining  what 
congress  can  do,  that  is,  what  are  the  limits  of  the  regulating 
power  of  congress.  The  law  of  interstate  commerce  is  essen- 
tially judge  made  law,  supplemented  in  comparatively  recent 
years  by  the  exercise  of  the  regulating  power  of  congress.  The 
Supreme  Court  has  repeatedly  declined  to  formulate  a  general 
rule  as  to  the  precise  line  where  the  power  of  congress  begins 
and  the  power  of  the  state  ends.2  It  was  on  this  question  of 
the  conflict  between  the  admitted  powers  of  the  state  and  of 
the  federal  government,  that  Chief  Justice  Marshall  said  that 
the  power  and  the  restriction  on  it,  though  quite  distinguish- 
able when  they  did  not  approach  each  other,  may  well,  like  the 
intervening  colors  between  white  and  black,  approach  so 
nearly  as  to  perplex  the  understanding,  as  colors  perpiex  the 
vision  in  marking  the  distinction  between  them.3 

In  the  recent  lottery  case  the  extent  of  the  federal  regulat- 
ing power  was  directly  presented  and  exhaustively  discussed, 
and  bv  a  bare  majority  of  the  court  the  federal  power  to  pro- 
hibit interstate  traffic  in  lottery  tickets  was  sustained,  but  it  was 
said  in  the  prevailing  opinion  that  the  whole  subject  was  too 

the  objects  of  the   bureau  and   its  fact  to  secure  conservative  action, 

work."  to  avoid  ill  considered  attack  upon 

1  <  lommissioner  ( rarfield  says  in  his  corporations  which  will  avoid  unfair 

report  of  December  1004,    "In  brief,  and.dishonest  practices.    Legitimate 

tin;  policy  of  the  bureau  in  the  ac-  business  law  respecting  persons  and 

complishment  of  the  purposes  of  its  corporations  have   nothing   to    fear 

creation  is  to  co-operate,  and  not  an-  from  the  proposed  exercise  of  this 

tagonise,  the  business  world.      The  governmental  power  of  inquiry." 
immediate  object  of  its  inquiries  is        -Welton  v.  Missouri,  91  U.  S.   275 

the  suggestion  of  constructive  legis-  (1875),  23  L.  Ed.  347:  Hall  v.  De  Cuir, 

hit  ion.  not  the  institution  of  criminal  95  U.  S.  485,  24  L.  Ed.  547. 

it  ion.     It  proposes  through  ex-        3  Brown    v.    Maryland,   12    Wheat. 

Jiaustive   investigations  of   law  and  419  (1827;,  6  L.  Ed.  67S. 


§   5t).]       FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  77 

important  and  the  question  suggested  by  its  consideration  too 
difficult  for  solution,  to  justify  any  attempt  to  lay  down  a  rule 
for  determining  in  advance  what  could  be  enacted  by  congress 
under  the  commerce  clause.     See  Lottery  case,  supra. 

The  power  of  congress  in  the  regulation  of  interstate  com- 
merce has  been  impliedly  declared  by  the  supreme  court  with 
reference  to  the  Interstate  Commerce  Act  in  several  cases  de- 
cided, involving  the  construction  of  that  act.  Thus  the  court 
has  pointed  out  the  possible  limits  of  the  power  which  congress 
could  have  delegated  to  the  railway  commission,  saying  that 
congress  could  itself  have  prescribed  the  rates,  or  could  have 
committed  to  some  subordinate  tribunal  this  duty;  but  it  held 
as  a  matter  of  construction  of  this  act  that  congress  had  not 
taken  either  of  these  permissible  courses  in  the  commerce  act.1 

This  unexercised  federal  power  has  been  discussed  {supra, 
§  -48)  in  connection  with  the  proposed  amendment  of  the  Inter- 
state Commerce  Act.  While  it  seems  to  be  conceded  thatcon- 
gress  has  the  power  to  regulate  rates  or  to  delegate  that  legis- 
lative power  to  a  commission,  this  power  must  be  exercised 
subject  to  the  guarantees  of  the  "due  process  of  law,"  and 
against  the  taking  of  private  property  for  public  use  without 
compensation.  In  the  exercise  of  this  power,  congress,  or  any 
commission  under  the  authority  of  congress,  is  restrained  by 
the  provision  that  *w  no  preference  shall  be  given  to  any  regula- 
tion of  commerce  or  revenue  to  the  ports  of  one  state  over 
those  of  another."  "  Ports"  of  entry  are  now  not  only  on  the 
seaboard,  but  are  scattered  through  the  interior,  and  the  ap- 
plication of  this  provision  to  the  federal  regulation  of  carrier's 
charges  in  the  recognition  of  "differentials"  between  compet- 
ing "ports"  is  yet  to  be  dertermined.     [Supra,  §  3.) 

A  wide  field  for  the  possible  exercise  of  the  federal  power 
of  regulation  is  found  in  the  class  of  cases  wherein  the  court 
has  adjudged  that  the  states  have  a  concurrent  power  of  legisla- 
tion in  the  non-action  of  congress.  In  other  words,  congress 
can  act  jn  cases  wherein  it  has  heretofore  exercised  its  power 
of  regulation  by  its  non-action.  Thus,  in  cases  where  congress 
has  heretofore  allowed  local  regulations  to  control,  and  also  in 
the  class  of  cases  where  the  court  has  sustained  state  statutes 

3  Interstate  Commerce  Commission  v.  Railway  Co.,  167  U.  S.  479,  I.  <? 
494  (1897),  42  L.  Ed.  243,  251. 


7^  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.        [§  57. 

or  state  laws  regulating  the  relations  of  interstate  carriers  to 
their  patrons.  In  such  cases  the  court  has  said  that  as  long  as 
congress  has  not  Legislated  in  aid  of  interstate  commerce,  they 
are  to  be  regarded  as  a  rightful  exercise  of  the  police  power 
of  the  state  iu  regulating  the  lawful  duties  of  persons  and 
corporations  within  their  limitations.1 

There  is  therefore  a  wide  legislative  discretion  in  congress 
to  determine  when  a  subject  is  capable  of  uniform  regulation 
in  interstate  commerce,  and  when  it  is  so  determined,  all  local 
or  state  legislation  in  respect  to  such  matters  and  covering  the 
same  ground  cease  to  have  the  same  force  whether  formally 
abrogated  or  not,  and  the  regulations  prescribed  by  congress 
will  then  alone  control.  It  is  for  the  supreme  court  to  deter- 
mine, when  a  question  arises,  as  to  whether  a  state  law  is  thus 
abrogated  by  the  exercise  of  the  power  by  congress.  The 
power  which  the  states  can  thus  exercise  will  in  this  way  be 
suspended  until  the  national  control  is  abolished  and  the  sub- 
ject thereby  again  left  under  the  control  of  the  states.2 

;  57.  Prohibition  and  regulation. —  The  most  important 
anJ  indeed  the  fundamental  question  involved  in  the  extension 
•of  the  federal  regulation  of  commerce  was  discussed,  but  not 
definitely  decided,  in  the  Lottery  Cases.  It  was  there  strongly 
contended  that  the  power  to  regulate  commerce  did  not  in- 
clude the  power  to  prohibit,  as  the  power  delegated  to  con- 
gress was  for  the  purpose  of  securing  the  freedom  of  inter- 
state commerce  and  preventing  the  hostile  or  discriminating 
action  of  the  states,  and  was  thereby  distinguished  from  the 
sovereign  control  over  foreign  commerce,  and  that  congress 
had  no  general  police  powers  such  as  are  reserved  to  the  states. 
This  view  was  strongly  maintained  by  the  four  dissenting 
judges.3 

The  prevailing  opinion  did  not  directly  dispute  or  discuss 
the  position  of  the  dissenting  judges,  and  declined  to  formu 
late  anv  general  rule  as  to  the  powers  of  congress,  but  based 
the   position  of  the   majority  upon   what  was  essentially  the 
moral  view,  that  the  lottery  business  had  grown  into  such  dis- 

i  Pennsylvania  R.  Co.   v.   Hughes,        -  Reid  v.  Colorado,   187  U.  S.   137 
101  U.  S.  477,  1.  c.  400  (.1903),  43  L.  Ed.     (1902),  47  L.  Ed.  108. 

3  Justices    Fuller,    Brewer,   Shiras 
and  Peckhain. 


§   58.]       FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  79 

repute  and  had  become  offensive  to  the  people  of  the  country, 
and  was  a  kind  of  traffic  that  no  one  was  entitled  to  pursu  •  as 
of  right,  and  that  under  the  circumstances  of  the  particular 
case  prohibition  was  an  appropriate  method  of  regulation. 
The  decision  was  therefore  limited  to  the  single  point  that  lot- 
tery tickets  were  subjects  of  traffic  and  that  congress  could 
lawfully  prohibit  such  traffic.1 

The  power  to  prohibit  is  necessarily  involved  in  any  effec- 
tive federal  control  of  the  corporate  agencies  engaged  in  the 
conduct  of  commerce,  whether  through  federal  incorporation 
or  any  form  of  federal  franchise,  that  is,  to  make  the  federal 
system  effective  its  adoption  must  be  made  compulsory.  The 
lottery  decision  related  to  the  subjects  of  commerce  and  did 
not  involve  the  power  of  congress  in  controlling  the  corporate 
relations  of  parties  engaged  in  commerce.  The  prevailing 
opinion  rests,  in  the  final  analysis,  upon  the  broad  ground 
that  it  is  for  congress  to  determine  when  the  public  good  re- 
quires the  use  of  prohibition  as  a  form  of  regulation  of  inter- 
state commerce. 

§  58.  Regulation  of  commerce  through  the  taxing  power. 
Interstate  commerce  may  also  be  regulated  through  the  exer- 
cise of  the  taxing  power  by  congress.  While  congress  has  not 
an  unlimited  power  as  to  the  purpose  of  taxation,  and  can  levy 
taxes  only  in  order  to  pay  the  debts  and  provide  for  the  com- 
mon defense  and  general  welfare  of  the  United  States,2  it  is 
also  true  that  under  the  permanent  revenue  system  of  the  gov- 
ernment, taxes  are  levied,  not  for  specific  purposes,  but  by  con- 
tinuing laws  establishing  the  rate  of  customs  duties  and  inter- 
nal  revenue  taxes,  and  questions  relating  to  the  lawful  pur- 
poses of  taxation  do  not  arise  in  levying  revenue  taxes  but  in 
the  appropriation  of  public  funds  for  public  needs. 

It  is  well  recognized  that  the  power  of  taxation  is  sometimes 
invoked  with  no  purpose  of  revenue  in  view,  but  solely  to  de- 
stroy the  interest  or  business  upon  which  the  tax  is  levied  by 

1  The  court  had  sustained  a  stat-  right  to  say  what  should  be  carried 

ute  excluding  lottery  tickets  from  therein.     But  it  was  said  that  con- 

the  mails.   See  In  re  Jackson,  96  U.  S.  gress  could  not  prevent  the  carriage 

72?.  24  L.  Ed.  877,  and  In  re  Rapier,  of    such    tickets    by    other    means, 

143  U.  S.  110,  36  L.  Ed.  93.     This  was  though  they  were  excluded  from  the 

on  the  ground  that  as  congress  fur-  mails, 

inished   postal   facilities  it   had   the  -Story  on  the  Constitution,  sec.  907. 


SO  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.       [§   59. 

taxing  it  out  of  existence.  Thus  the  notes  of  the  state  banks 
were  taxed  out  of  existence  in  order  to  open  the  means  for  cir- 
culating the  notes  of  the  national  banks.  This  act  was  sus- 
tained by  the  supreme  court.1  The  court  said  that  it  was  im- 
material that  the  tax  destroyed  the  business  or  franchise  exer- 
cised under  state  authority  While  the  only  lawful  purpose  of 
taxation  is  revenue,  the  amount  of  the  tax  on  any  subject 
within  the  scope  of  the  taxing  power  is  for  the  legislative  dis- 
cretion to  determine.  In  the  words  of  chief  justice  Marshall 
in  McCulioch  v.  Maryland,2  "  it  is  a  perplexing  inquiry  unfit 
for  the  judicial  department,  what  degree  of  taxation  is  a  legit- 
imate use  and  what  degree  may  amount  to  an  abuse  of  the 
power?  '*  A  tax  on  oleomargarine,  as  is  well  known,  was  im- 
posed for  the  avowed  purpose  of  destroying  the  business.  It 
therefore  follows  that  congress,  subject  to  the  constitutional  re- 
quirement of  geographical  uniformity  !  and  to  the  limitations 
of  direct  taxation,4  could  impose  indirect  taxes  and  excises  on 
subjects  and  facilities  of  commerce  or  upon  the  privilege  of 
carrying  on  such  commerce,  whether  by  individuals  or  corpo- 
rations, and  that  the  amount  of  such  taxes  would  be  deter- 
mined by  the  discretion  of  congress. 

§  59.  The  federal  power  of  granting  corporate  charters. — 
The  unexercised  or  undeveloped  power  of  congress  in  inter- 
state commerce  is  now  discussed  more  particularly  with  refer- 
ence to  the  power  of  congress  in  federal  incorporation  of  busi- 
ness or  trading  companies.  Interstate  and  foreign  commerce 
under  modern  business  conditions  are  almost  wholly  carried 
on  by  corporations  chartered  by  the  several  states.  The  states- 
there  fore  have  the  sole  visitorial  control  of  the  organization  of 
the  business  associations,  through  and  by  which  the  interstate 
and  foreign  business,  subject  to  the  exclusive  jurisdiction  of 
congress,  is  carried  on.  The  difficulty  of  effectual  govern- 
mental regulation  of  such  commerce  is  apparent. 

The  power  to  charter  a  corporation  is  not  among  the  enu- 
merated powers  of  congress,  but  in  the  great  case  of  McOul- 

iVeazie  Bank  v.  Fenno,  8   Wall.         4  Income  Tax  Cases,  158  U.  S.  601, 

533    ivi'>'.»,  19  L.  Ed  39  L.  Ed.  108:  Nicol  v.  Ames.  173  U. 

ipra.%  I.  S.  509,  43  L.  Ed.  786;  Knowlton  v. 

3  Head  .Money  Cases,  112  U.  S.  5S0,  Mooue,  supra. 
28   !..   Ed.   798;  Knowlton   v.  Moure, 
EL  51 .  11  L  Ed.  969. 


§  50.]       FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  81 

loch  v.  Maryland1  the  court  based  the  power  to  charter  a  na- 
tional bank  upon  the  right  of  congress  to  adopt  incorporation 
as  a  reasonable  means  of  carrying  into  effect  its  enumerated 
powers.  "Incorporation,"  said  the  court,  "is  never  made  the 
end  for  which  their  powers  are  exercised,  but  a  means  by 
which  their  objects  are  accomplished.''  .  .  "The  power  of 
creating  a  corporation  is  never  used  for  its  own  sake,  but  for 
the  purpose  of  affecting  something  else."  The  bank,  there- 
fore, was  lawfully  incorporated  as  a  means  of  managing  the 
great  fiscal  concerns  of  the  government.  The  constitutionality 
of  the  national,  banking  act  of  1864  was  based  on  the  same 
principle.  The  national  banks  organized  under  the  act,  said 
the  court,  were  the  instruments  designed  to  be  used  to  aid  the 
government  in  the  administration  of  an  important  branch  of 
the  public  service.     They  are  means  appropriate  to  that  end.2 

Congress  also  has  the  power  to  incorporate  railroad  com- 
panies to  carry  on  interstate  commerce,3  and  to  charter  a  cor- 
poration for  constructing  a  bridge  over  a  navigable  stream 
forming  the  boundary  of  two  states  and  condemn  the  property 
for  approaches  thereto.4  The  power  to  incorporate  was  sus- 
tained as  a  reasonable  and  proper  means  of  regulating  com- 
merce between  the  states,  since  corporations  were  direct  in- 
strumentalities for  carrying  on  interstate  commerce. 

A  corporate  franchise  involves  the  power  ft?  be,  and  also  the 
power  ft?  do.  Congress  has  the  power  to  grant  a  corporate  fran- 
chise for  the  construction  of  national  highways.  The  supreme 
court  in  the  Pacific  Railroad  Tax  cases,5  said  that  in  former 
times  this  power  was  exercised  very  little,  as  commerce  was  then 
conducted  wholly  by  water,  and  many  of  our  statesmen  had 
entertained  doubts  as  to  the  existence  of  the  power  to  establish 
ways  of  communication  over  land.  But  since  the  expansion 
of  the  commerce  of  the  country,  the  multiplication  of  its  prod- 
ucts and  the  invention  of  railroads  and.  locomotion  by  steam, 
land  transportation  has  so  vastly  increased,  that  a  sounder  con- 

U  Wheat.  316,  supra.  Railroads,  127  U.  S.  1,  32  L.  Ed.  150; 

2  Farmers,  etc.,  National  Bank  v.  Decker  v.  R.  R.  Co.,  30  Fed.  Rep.  723. 
Dearing,  91  U.  S.  29  (1875),  23  L.  Ed.  «  Luxton  v.  North  River  Bridge  Co., 
196.  153  U.  S.  525,  38  L.  Ed.  808. 

3  Pacific  R.  Cases,  115  U.  S.  2,  29  L.  &  127  U.  S.  1,  supra,  note  3. 
Ed.  319  (1885);  California  v.  Pacific 

6 


FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.        [§  60. 

sideration  of  the  subject  has  prevailed  and  led  to  the  conclusion 
that  congress  had  plenary  power  over  the  whole  subject. 

Congress  has  granted  charters  of  incorporation  with  fran- 
chises to  be  exercised  in  the  District  of  Columbia,  as  insurance 
companies,1  and  savings  banks  and  trust  companies.2  A  fed- 
eral charter  was  also  granted  to  the  Maritime  Nicaraugua 
(anal  Company  for  facilitating  intercourse  between  the  At- 
lantic and  Pacific  oceans.3  The  National  Trades  Union  in- 
corporation  act,  infra,  §  376,  contains  no  reference  to  inter- 
state commerce  except  that  the  members  must  be  resident  in 
two  or  more  states.  No  incorporation  had  been  formed  under 
this  act  up  to  January  1,  1905. 

^  (iO.  National  incorporation  as  a  means  in  the  exercise  of 
the  commerce  power. —  As  congress  can  exercise  this  power 
of  incorporation  as  a  means  and  not  as  an  end,  its  power  of  in- 
corporation under  the  commerce  clause  would  necessarily 
therefore  be  limited  in  its  grant  to  the  carrying  on  of  inter- 
state and  foreign  commerce,  with  such  corporate  powers  as 
would  be  fairly  incidental  to  such  general  grant.  Congress 
has  no  power  over  the  business  of  manufacturing,  mining  or 
other  local  productive  industries  conducted  in  the  states,4  and 
therefore  such  powers  could  not  be  granted  by  congress,  nor 
exercised  under  a  congressional  grant. 

It  has  been  suggested"'  that  a  "  franchise  to  produce,"  as  by 
manufacturing,  would  be  an  incidental  and  essential  franchise 
to  sell,  and,  therefore,  congress  would  have  the  power  to  grant 
producing  franchises  as  essential  to  the  carrying  on  of  inter- 
state commerce.  This  position  seems  clearly  untenable  in  view 
of  the  distinct  declaration  of  the  supreme  court  in  the  Knight 
case,  that  commerce  is  incidental  to  manufacture  and  succeeds 
to  it,  but  is  not  a  part  of  it,  and  that  the  jurisdiction  of  con- 
gress relates  to  commerce  alone.  As  said  in  that  case  and 
in  an  earlier  case,'1  the  result  of  a  contrary  ruling  would  be 
that  congress  would  be  invested  to  the  exclusion  of  the  states 
witli  the  power  to  regulate  every  branch  of   human  industry. 

i  Act  of  February  14,  1805,  13  Stats.  4  United    States    v.    Knight     Co., 

428.  supra. 

-Act   of   March  3,  1865,  13  Stats.  5  Appendix  A  to  Report   of  Com- 

510.  missioner  of  Corporations,  Dec.  1904. 

;  A.ot  of  February  20, 1899,  25  Stats.  Ij  Kidd  v.  Pearson,  128  U.  S.  1.  32  L. 

<;7j.  Ed.  346. 


§  61.]       FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  83 

A  corporation  organized  to  engage  in  interstate  and  foreign 
commerce  would  necessarily  buy  in  order  to  sell,  and  such  pur- 
chases and  sales,  both  domestic  as  well  as  interstate  and  for- 
eign, could  be  held  incidental,  as  essential  to  the  exercise  of 
the  federal  grant.  The  power  "  to  produce,"  however,  would 
involve  manufacturing,  mining  and  the  whole  range  of  local 
productive  industries,  and  their  regulation  and  control  by  fed- 
eral authority,  under  the  commerce  power  would  essentially 
revolutionize  the  whole  frame-work  of  our  government,  with 
its  distinct  divisions  of  the  powers  of  sovereignty  between  the 
state  and  federal  governments. 

The  difficulty  does  not  lie  merely  in  the  conflict  with  the 
sovereignty  of  the  state,  which  has  exclusive  jurisdiction  over 
the  business  of  manufacturing  and  producing  within  its  bor- 
ders, but  in  the  limitation  of  the  federal  government  to  the 
powers  expressly  granted  and  to  those  which  are  fairly  and 
reasonably  incidental  to  those  expressly  granted. 

§  61.  Relation  of  the  states  to  federal  corporations. — As- 
suming that  corporations  are  chartered  by  congress  for  the 
carding  on  of  interstate  and  foreign  commerce,  their  status  in 
relation  to  the  state  government  can  be  determined  by  analogy 
from  the  relation  now  held  b}'  national  banks,  which  are  organ- 
ized under  federal  law,  and  by  interstate  railroad  corporations 
organized  under  federal  law,  and  corporations,  as  railroad 
companies,  transacting  interstate  business,  though  chartered 
under  state  law. 

National  banks  are  not  chartered  under  the  commerce  clause, 
but  as  banks  of  deposit  and  discount  their  ordinary  business 
does  not  differ  in  any  wise  from  that  of  the  state  banks  in  the 
same  communities.1  The  Pacific  railroads  were  incorporated 
by  Congress,  and  though  chartered  by  the  federal  power,  they 
transact  local  as  well  as  through  business,  and  as  to  the  former 
are  subject  to  the  laws  of  the  states  where  they  operate.2  It 
would  seem,  however,  from  expressions  in  the  opinions  cited, 
that  this  subjection  to  state  control  in  the  regulation  of  local 

1  The  Secretary  of   the  Treasury,  2  Reagan  v.  Mercantile  Trust  Co., 

December    1904,    recommends  that  154  U.  S.  413  (1894),  38  L.  Ed.   1028; 

congress  should  make  provision  for  Smyth  v.  Ames,  169  U.  S.  466  (1898), 

the  incorporation  and  regulation  of  42  L.  Ed.  819. 
trust  companies. 


84  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.        [§  62. 

rates  results  from  a  failure  of  congress  to  express  any  intention 
in  the  acts  of  incorporation  that  the  company  should  be  exempt 
from  state  control. 

Assuming,  therefore,  that  congress  should  incorporate  com- 
panies for  the  purpose  of  carrying  on  interstate  and  foreign 
commerce,  such  companies  could  make  domestic  as  well  as  in- 
terstate and  foreign  sales.  Congress  would  have  visitorial 
power  over  such  corporations,  as  it  has  over  national  banks, 
but  its  domestic  business  would  be  subject  to  state  regulation 
and  control,  as  the  domestic  business  of  interstate  carriers 
is  subject  to  such  state  control.  The  state  power  of  taxa- 
tion of  property  within  its  jurisdiction  could  be  subjected  to 
the  state  taxing  power  as  that  of  national  banks  is  now  so  sub- 
jected. The  franchise  "  to  do,"  that  is,  the  franchise  to  trans- 
act interstate  and  foreign  commerce,  which  would  be  held  b}^ 
such  corporation  under  the  federal  grant,  would  not  be  subject 
to  state  taxation,  and  neither  the  right  to  transact  such  busi- 
ness, nor  such  interstate  and  foreign  business  conducted  by 
state  corporations  would  be  subject  to  state  taxation;  but  the 
"business"  so  exempt  is  to  be  distinguished  from  the  prop- 
erty employed  in  the  jurisdiction  in  the  transaction  of  the 
business. 

It  has  been  suggested  that  federal  incorporation  of  business 
companies  would  be  ineffective  without  a  "franchise  to  pro- 
duce," as  states  could  pass  discriminating  laws  prohibi ting- 
sales  to  such  corporations.  It  is  obvious,  however,  that  any 
state  statutes  interfering  with  or  discriminating  against  federal 
corporations  in  the  exercise  of  their  federal  franchise,  would 
be  clearly  violative  of  the  federal  supremacy  in  the  regulation 
of  interstate  commerce.1 

.  62.  The  requirement  of  federal  franchise  for  business 
corporations  in  interstate  commerce. —  Another  method  of 
proposed  regulation  of  interstate  commerce  is  through  the 
requirement  of  a  federal  franchise  for  state  corporations  to 
transact  interstate  commerce.  This  is  the  method  recommended 

iSee  Easton  v.  Iowa,  188  U.  S.  220:  address  of  J.  B.  Dill  before  Harvard 
47  L.  Ed.,  452  (190:3),  as  to  holding  university,  March,  1902,  Yale  Law- 
void  attempted  state  regulation  of  Journal,  1902,  on  A  National  Incor- 
national  banka  poration  Law   for  Trusts;    Professor 

'Mi  this  general  subject  of  the  in-  Horace  L.    Wilgus,  Michigan  State 

corporation    power  of  congress,  see  University, Law  School,  in  Michigan 


§  G2.]       FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  85 

by  the  commissioner  of  corporations.1  Assuming  that  such  a 
system  was  adopted,  its  effectiveness  would  of  course  depend 
upon  its  exclusiveness.  Thus,  corporations  not  having  such 
federal  license  would  be  concluded  from  the  transaction  of 
interstate  commerce.  It  is  true  also  that  if  a  system  of  federal 
incorporation  was  adopted,  it  would  not  be  effective  if  its 
adoption  was  voluntary,  as  under  the  presetit  system  corporate 
charters  are  sought  from  the  states  which  are  the  most  liberal 
in  their  incorporation  laws.  The  adoption  of  federal  charters 
could  doubtless  be  made  effective  through  the  exercise  of  the 
federal  power  of  taxation,  as  the  same  power  was  effective  in 
the  establishment  of  the  national  banking  system. 

The  requirement  of  either  method,  therefore,  would  mean 
the  exercise  of  the  power  of  prohibition  by  congress  by  means 
of  regulation,  in  that  corporations  not  having  the  necessary 
franchise  would  be  precluded  from  transacting  interstate  com- 
merce. Such  a  policy  as  to  the  parties  transacting  interstate 
commerce  would  be  essentially  novel,  as  the  power  of  prohi- 
bition has  been  heretofore  exercises  only  as  to  the  subjects  of 
commerce,  as  in  the  lottery  cases. 

Law  Review,    February  and   April,  porations,  under  license  or  franchise. 

1904;    report  of  Industrial  Commis-  which    should     provide    a    federal 

sion,  Vol.  19,  pp.  644  et  seq.;  also  re-  franchise  or  license  tothose  engaged 

port  of  Committee  on  Commerce  of  in  interstate  commerce  and  a  prohi- 

American  Bar  Association  of  1904;  bition  of  all  corporations  or  corpo- 

W.    S.   Logan   in   thirty-seven  Law  rate    agencies     from     engaging    in 

Review,    March     and    April,     1903;  interstate     or     foreign     commerce 

Cannon   F.  Randolph   in   Columbia  without  such   federal  franchise   or 

Law  Review  for  March,  April  and  license,  and  to  include   the  imposi- 

May,    1903;     bill   of   H.  W.    Palmer,  tion  of  all  necessary   requirements, 

58th  congress,  H.  R.  66.     See  also  ad-  as    to    corporate    organization    and 

dress  of    Professor    Wilgus    before  management,  as  a  condition  prece- 

State   Board   of   Commissioners  for  dent  to  the  granting  of  such  federal 

Promoting      Uniform      Legislation,  franchise  or  license,  with  the  right 

September    29,    1904,    published    by  to  refuse  or   withdraw  such    fran- 

George  Wahr,    Ann    Arbor,    Mich.,  chise  or  license  in  case  of  violation 

'Should  there  be  a  Federal  Incorpo-  of  law.  with  the  proper  right  of  judi- 

ration  Law  for  Commercial  Opera-  cial    appeal    to    prevent    abuse    of 

ations?  "  power. 

1  Mr.    Garfield,   the    commissioner  See  review  of  this  report  in  the 

of  corporations,  in  his  first  annual  Michigan  Law  Review  of  February, 

report,  December,  1904,  recommends  1905,   by    Professor    H.    L.    Wilgus, 

that  congress  consider  the  advisabil-  "Federal  License  or  National  Incor- 

ity  of  enacting  a  law  for  the  regu-  poration." 
lation  of  interstate  and  foreign  cor- 


S6  FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.        [§   03. 

The  supreme  court  held  x  that  a  state  statute  providing  that 
an  agent  of  an  interstate  express  company  should  take  out  a 
license  showing  that  the  company  he  "represented  was  pos- 
sessed of  a  capital  of  8150,000,  was  invalid.  The  court  said 
that  to  carry  on  interstate  commerce  was  not  a  franchise" 
or  a  privilege  granted  by  the  state,  but  a  right  which  every 
citizen  of  the  United  States  was  entitled  to  exercise  under  the 
constitution  and  laws  of  the  United  States,  and  the  accession 
of  mere  corporate  facilities  in  carrying  on  their  business  could 
not  have  the  effect  of  depriving  them  of  such  right  unless  con- 
gress should  see  fit  to  interpose  some  contrary  regulation  on 
the  subject.  Although  this  decision  was  rendered  with  refer- 
ence to  the  power  of  a  state  over  an  interstate  express  com- 
pany, it  would  seem  to  follow,  as  the  only  regulating  power  is 
that  of  congress,  that  it  can  determine  what,  if  any,  regulation 
is  required  for  the  conduct  of  interstate  commerce  with  corpo- 
rate facilities. 

But  assuming  that  congress  may  have  the  power  to  deter- 
mine on  what  conditions  commerce  may  be  conducted  under 
corporate  organizations,  or  by  corporations,  it  does  not  follow 
that  it  would  have  an  unlimited  power  in  prescribing  the 
terms  and  conditions  of  corporate  organization  to  be  exacted 
as  a  condition  of  such  licenses.  These  requirements,  it  would 
seem,  should  have  a  reasonable  relation  to  the  business  of  in- 
terstate commerce,  over  which  alone  congress  has  the  regulat- 
ing power. 

§  63.  The  developing  construction  of  the  federal  power  in 
the  regulation  of  commerce. —  The  developing  power  of  pub- 
lic opinion  growing  out  of  changed  economic  conditions  may 
doubtless  affect  in  the  future,  as  it  certainly  has  in  the  past, 
the  construction  of  the  federal  constitution  as  to  the  federal 
power  over  interstate  commerce.  The  commerce  clause,  writ- 
ten for  the  days  of  the  stage-coach  and  sailing  vessel,  has  been 
adapted  by  judicial  construction  to  the  age  of  steam  and  elec- 
tricity. The  public  opinion  of  one  age  or  generation,  even  the 
thoughtful  and  judicial  opinion,  is  not  that  of  another.  It  was 
the  changed  economic  conditions,  the  tremendous  development 
of  commerce  between  the  states,  which  forced  the  way  to  the 
judicial  recognition  of  the  latent  federal  powers  in  the  cora- 
1  Crutcher  v.  Kentucky,  141  U.  S.,  47,  35  L.  Ed.  649  (1891). 


§  63.]       FEDERAL    REGULATION    OF    INTERSTATE    COMMERCE.  87 

merce  clause  of  the  constitution,  and  it  cannot  be  doubted  that 
these  influences  will  be  felt  in  the  future,  as  they  have  been  in 
the  past.  The  questions  of  the  present  day  growing  out  of  the 
new  business  conditions,  the  development  of  great  combina- 
tions both  of  commerce  and  of  labor,  which  are  discussed  in 
the  succeeding  chapter,  will  doubtless  influence  the  judicial 
construction  of  the  commerce  clause  in  the  future. 

The  inherent  and  fundamental  difficulty  of  construing  a 
written  constitution  to  meet  altered  economic  and  social  con- 
ditions never  contemplated  by  its  framers  is  illustrated  in  the 
close  divisions  of  the  supreme  court  in  the  Insular  cases,  the 
Anti-Trust  Bail  road  cases  and  the  Lottery  case,  which  are  in 
striking  contrast  with  the  unanimity  of  the  court  in  the  great 
constitutional  decisions  of  our  early  history.  In  reading  these 
opinions,  wherein  learned  jurists  find  themselves  compelled  to 
reach  radically  different  conclusions,  we  realize  that  we  are 
between  the  "Mighty  Opposites,"  representing  irreconcilable 
forces  in  our  national  constitutional  and  economic  develop- 
ment. 

It  was  wisely  said  by  Mr.  Lowell  that  our  written  constitu- 
tions are  an  obstacle  to  the  whim,  but  not  to  the  will  of  the 
people. 

The  change  in  public  opinion  influencing  constitutional  ju- 
dicial construction  may  result  not  only  from  economic  or  so- 
cial changes,  but  from  changes  in  the  moral  standards  of  pub- 
lic opinion.  This  was  forcibly  illustrated  in  the  lottery  cases, 
where  the  decision  was  based  on  a  distinctly  moral  ground, 
that  lotteries  were  recognized  public  nuisances;  while  at  the 
time  of  the  adoption  of  the  constitution  lotteries  were  a  recog- 
nized means  of  raising  money  for  public,  educational  and  chari- 
table purposes.  It  would  have  appeared  strange  indeed  to  the 
framers  of  the  constitution  that  the  federal  power  could  ever 
be  successfully  exerted  to  prohibit  interstate  traffic  in  lottery 
tickets.1 

1  See  Waite,  C.  J.,  in  Stone  v.  Mis-  of  the   federal  judicial   power,   the 

sissippi,  101  U.  S.  814,  818,  25  L.  Ed.  case  was  that  of  a  party  claiming 

107D  (1879).     In  Cohens  v.  Virginia,  the   right  to  sell  lottery  tickets  in 

6  Wheat.    264   (1821),  5   L.  Ed.  257,  Virginia  for  a  lottery  in  the  District 

wherein   Marshall,    U.  J.,   delivered  of  Columbia,   established    under    a 

his  great  opinion  on  the  supremacy  charter  granted  by  Congress  in  1812. 


CHAPTER  IV. 

BUSINESS    AND    LABOR    COMBINATIONS   IN   INTERSTATE   COM- 
MERCE. 

Page. 
§  64.     Demand  for  federal  regulation  of  business  combinations 88 

65.  The  Anti-Trust  Act  of  1890 89 

66.  Relation  of  act  to  common  law  of  interstate  commerce 90 

67.  Constitutionality  of  the  act 91 

68.  Construction  of  the  act  by  the  Supreme  Court    91 

69.  Reasonable  and  unreasonable  restraints  of  trade 93 

70.  Contracts  in  restraint  of  trade  under  the  act 9.") 

71.  Contracts  restraining  sales  by  rebates  not  within  the  act 96 

70.     Monopoly  within  the  meaning  of  the  act 98 

73.  Monopoly  in  law  and  in  fact  distinguished 99 

74.  No   distinction   in  the  act  between  necessaries  of  life  and  other 

articles 100 

75.  No  application  to  commerce  within  a  state 102 

76.  Application  to  state  "  holding  companies  " 103 

77.  The  labor  legislation  of  Congress 104 

78.  Regulation  of  interstate  commerce  in  relation  to  labor 105 

79.  The  courts  on  labor  combinations  in  relation  to  interstate  com- 

merce    105 

80.  The  federal  judicial  power  and  labor  combinations 106 

81.  Sympathetic  strikes  and  boycotts  by  interstate  employees 108 

82.  The  law  of  conspiracy  in  interstate  commerce 110 

83.  Distinguished  from  common  law  conspiracy 113 

84.  Interstate  commerce  in  relation  to  employees  therein 114 

85.  "  Picketing"  and  "Soliciting  "  in  interstate  commerce 116 

86.  The  relation  of  interstate  railroad  employees  is  that  of  free  con- 

tract    117 

87.  The  right  of  labor  organization  includes  the  right  of  representa- 

tion     119 

88.  Injunction  in  interstate  commerce 120 

89.  Contempt  in  United  States  courts 123 

90.  Mandator}'  injunctions  in  interstate  commerce 127 

$  64.  The  demand  for  federal  regulation  of  business  com- 
binations.—  As  the  demonstrated  incapacity  of  the  states  to 
regulate  interstate  commerce  was  the  direct  occasion  for  the 
enactment  of  the  Interstate  Commerce  Law  in  1887,  so  the  anti- 
trust agitation  following  thereafter  caused  the  demand  for  the 
exercise  of  the  federal  power  in  dealing  with  business  combi- 
nations in  commerce  which  the  states  were  powerless  to  control. 
The  distinct  economic  trend  in  industrial  development,  which 


§  65.  BUSINESS    AND    LABOR    COMBINATIONS.  89 

was  then  manifested  in  the  efforts  to  save  economic  waste  in 
the  protection  and  distribution  by  the  concentration  of  cap- 
ital in  business  enterprises,  resulted  in  different  forms  of  com- 
binations for  the  restriction  of  competition  in  business,  which 
aroused  public  hostility  and  led  to  the  enactment  by  many 
states  of  anti-trust  laws  more  or  less  drastic,  prohibiting  all 
combinations  in  restraint  of  competition.  Such  laws,  however, 
proved  inadequate,  as  they  could  have  no  extra-territorial  oper- 
ation beyond  state  lines,  and  the  freedom  of  commerce  secured 
under  the  constitution  of  the  United  States  precluded  the  states 
from  excluding  "  trust-made  "  goods  imported  from  other  states. 
Public  opinion,  which  has  found  frequent  expression  in  judi- 
cial opinions,  was  firmly  convinced  that  the  repression  of  com- 
petition tended  to  monopoly,  and  that  the  control  of  produc- 
tion and  prices  by  the  elimination  of  competition  in  any  industr}1- 
was  dangerous  to  the  public  welfare.  It  was  recognized  that 
the  control  of  prices  could  be  exercised  not  merely  in  raising, 
but  also  at  certain  times  in  certain  localities  in  unduly  depress- 
ing them  so  as  to  crush  competitors  by  underselling.  The  evil 
aimed  at  was  the  unregulated  power  of  control  over  industries 
resulting  from  the  successful  elimination  of  competition  through 
the  extension  of  the  principle  of  business  association. 

This  agitation  in  congress  and  out  of  it  resulted  in  the  pas- 
sage of  the  so-called  Sherman  Anti-Trust  Act,  which  was  ap- 
proved July  2, 1890.  While  the  occasion  of  the  act  was  clearly 
the  popular  outcry  against  business  combinations,  it  will  be 
seen  that  in  its  judicial  construction  and  practical  working  its 
main  effectiveness  has  been  in  its  application  to  interstate  rail- 
roads and  labor  combinations. 

§65.  The  Anti-Trust  Act  of  1890 This  act  which  was 

entitled  "  An  Act  to  protect  trade  and  commerce  against  unlaw- 
ful restraints  and  monopolies,1'  declared  illegal  and  criminal, 
punishable  by  fine  or  imprisonment  or  both,  every  contract  or 
combination  in  the  form  of  trust  or  otherwise,  or  conspiracy 
in  restraint  of  trade  or  commerce  among  the  several  states  or 
with  foreign  nations.1  The  act  provided  penalties  for  its  viola- 
tion, included  contracts  made  in  any  territory  or  the  district 

1  The  Tariff  Act  of  1894  contained    continued  in  force  by  the  Tariff  Act 
the  same  prohibition  of  combinations    of  1897,  3  Comp.  Stats,  p.  3202. 
in   the  import  trade,   and  this  was 


90  BUSINESS    AND    LABOR    COMBINATIONS.  [§   GG. 

of  Columbia,  and  provided  for  seizure  and  condemnation  of 
property  in  the  course  of  transportation  owned  under  any 
contract  made  in  violation  of  the  act,  gave  an  action  to  private 
persons  injured  by  such  combinations  with  threefold  damages, 
and  a  summary  procedure  in  equity  at  the  suit  of  the  United 
States  to  prevent  and  restrain  violations  of  the  act.1 

.i(>().  Relation  of  act  to  common  law  of  interstate  com- 
merce.—  Contracts  in  interstate  commerce,  and  subject  as 
such  to  the  regulating  power  of  congress,  in  the  absence  of 
congressional  regulation  are  controlled  by  the  rules  of  the 
common  law.-  There  are  no  common  law  crimes  in  the  United 
States,  and  at  common  law  contracts  in  restraint  of  trade,  that 
is  in  general  restraint  of  trade,  are  not  illegal  except  in  the 
sense  that  the  law  will  not  enforce  them.  "It  does  not  pro- 
hibit the  making  of  such  contracts,  it  merely  declines  after 
they  have  been  made,  to  recognize  their  validity."3  This 
statute  therefore  changes  the  common  law,  in  that  it  makes 
contracts  in  restraint  of  trade  in  interstate  commerce  both 
illegal  and  criminal. 

It  was  declared  by  the  supreme  court  however  in  the  Debs 
case  4  that  the  power  of  the  national  government  over  inter- 
state commerce  and  its  right  to  invoke  the  power  of  the  courts 
to  remove  any  obstructions  to  such  commerce,  did  not  depend 
upon  the  statute,  but  on  the  broader  ground  of  the  attributes 
of  sovereignty  possessed  by  the  government  within  the  limit 
of  its  enumerated  powers.  It  seems  also  that  there  is  a  juris- 
diction in  equity  which  may  be  invoked  by  private  citizens 
irrespective  of  the  statute,  on  general  principles  of  equitable 
jurisprudence,  to  afford  preventive  relief  against  threatened 
injury  about  to  result  to  an  individual  from  any  unlawful 
agreement,  combination  or  conspiracy  in  restraint  of  trade 
irrespective  of  the  statute.5  It  would  follow,  therefore,  that 
without  the  statute,  or  if  the  statute  was  repealed,  the  public 

i  gee  infra,  i  314  et  seq.,  for  act  in  4  jgg  u.  S.  564,  39  L.  Ed.  1092. 

full,  with  the  judicial  construction  5 Gulf,  Colo.  &  S.  F.  R  Co.  v.  Miami 

and  application  of  the  several  provis-  S.  S.  Co.,  5th  Circuit  Court  of  Ap- 

ions,  and  procedure  for  enforcement,  peals,  30  C.  C.  A.  142,  1.  c.  156,  and  86 

-•  Supra,  $  43.  Fed.   Rep.   407    (1898).      See    supra,. 

'■'•  Lord  Boweri  in  Mogul  Steamship  §  43. 
Co.  v.  McGregor,  23  Cj).   B.   Div.  598 
[889). 


§§  67,  QS.']  BUSINESS    AND    LABOR    COMBINATIONS.  91 

interests  and  private  property  rights,  could  be  protected  by 
the  civil  courts  against  unlawful  combinations  in  interstate 
commerce. 

§67.  Constitutionality  of  the  act. —  The  constitutionality 
of  the  Anti-Trust  Act  has  been  sustained  by  the  supreme 
court.  Even  as  construed  in  the  Trans-Missouri  Freight  Asso- 
ciation case  and  in  the  Joint  Traffic  Association  case,  that  no 
contract  or  combination,  whether  reasonable  or  unreasonable, 
restraining  trade  or  commerce  in  interstate  commerce  is  legal, 
the  act  was  adjudged  not  violative  of  the  freedom  of  contract 
guaranteed  by  the  fifth  amendment  of  the  constitution  of  the 
United  States.1  The  court  said  that  notwithstanding  the 
general  liberty  of  contract  possessed  by  citizens  under  the  con- 
stitution, there  were  many  kinds  of  contracts  which  were  not 
themselves  immoral  or  mala  in  se,  which  may  yet  be  prohibited 
by  the  legislatures  in  the  states,  or  in  certain  cases  by  congress. 
The  power  existed  in  congress  and  the  statute  was  the  legiti- 
mate exercise  of  the  power  of  congress  to  regulate  interstate 
commerce,  and  the  question  for  the  court  was  one  of  power 
only  and  not  of  policy,  as  the  latter  question  was  determined 
by  congress. 

§  68.  Construction  of  the  act  by  the  Supreme  Court. — The 
construction  of  the  act  by  the  supreme  court  disappointed 
many  of  the  anticipations  of  its  effectiveness,  as  it  was  held  in 
the  Sugar  Trust  Case2  that  the  statute  did  not  reach  a  state 
manufacturing  company  which  was  acquiring  by  purchase  of 
the  stock  of  other  refining  companies  through  shares  of  its 
own  stock,  nearly  complete  control  of  the  manufacture  of 
refined  sugar  in  the  United  States.  The  reasoning  of  the 
opinion  went  beyond  the  construction  of  the  act,  and  indi- 
cated that  the  power  of  congress  was  exhausted  in  its  desifr- 

L  CD  O 

nation  of  the  contracts  and  combinations  which  were  made 
illegal.  Manufacture  precedes  commerce  but  is  not  a  part  of 
it,  and  sale  as  an  incident  to  manufacture,  therefore,  was  dis- 
tinguished from  commerce.  The  monopolies  denounced  by 
the  act  are  those  in  interstate  and  foreign  commerce,  and  not 

i  United  States  v.  Joint  Traffic  As-     v.  United  States,  175  U.  S.  211  (1899), 
sociation,  171  U.  S.  505  (1898),  43  L.     44  L.  Ed.  136. 

Ed.  259;  Addyston  Pipe  &  Steel  Co.        -United    States    v.    Knight  Com- 
pany, 156  U  S.  1  (1895),  39  L.  Ed.  325. 


02  BUSINESS    AND    LABOR    COMBINATIONS.  [^  68. 

those  in  the  manufacture  of  the  necessaries  of  life  or  anything 
manufactured.  The  court  said  that  if  the  term  "commerce" 
were  held  to  include  the  regulation  of  all  such  manufactures 
as  were  intended  to  be  subject  to  commercial  transactions  in 
the  future,  the  result  would  be  that  congress  would  be  .invested 
to  the  exclusion  of  the  states  with  power  to  regulate,  not  only 
manufactures,  but  all  domestic  industries,  as  the}7  all  contem- 
plated more  or  less  clearly  interstate  or  foreign  markets. 

Combinations  between  interstate  railroads  for  the  suppres- 
sion of  competition  are  included  in  the  act.1  In  the  last  cited 
case  it  was  held  that  the  New  Jersey  corporation  organized 
as  a  -holding  corporation"  for  holding  the  shares  of  compe- 
ting interstate  railroads  was  an  illegal  combination  and  in 
restraint  of  interstate  commerce.  The  Interstate  Commerce 
Act  and  the  Anti-Trust  Act  are  not  inconsistent  and  both 
statutes  stand.  Prior  to  the  passage  of  the  Interstate  Com- 
m  rce  Act,  combinations  had  some  times  endeavored  to 
regulate  competition  and  rates  by  pooling,  and  that  form  of 
combination  was  specifically  forbidden  by  section  5  of  the 
Interstate  Commerce  Act.2 

While  the  act  has  been  construed  to  include  combinations, 
where  the  direct,  immediate  and  intended  effect  is  for  the 
suppression  of  competition  in  interstate  business,3  it  does  not 
include  agreements  and  regulations  which  are  nothing  more 
than  charges  for  local  facilities  provided  for  the  transaction 
of  commerce,  or  which  only  incidentally  affect  interstate 
commerce.4  It  is  not  restraint  of  trade  that  is  made  illegal 
by  the  statutes,  as  that  may  be  the  incidental  effect  of  a  valid 
agreement,  or  conduct,  but  it  is  the  making  of  a  contract 
which   is,  or  is  intended  to  be,  in  direct  restraint  of  trade.5 

'  United  States  v.  Freight  Associ-  United  States,  175  U.  S.   211  (1899), 

ation,  1GG  U.  S.  290  (1897),  41   L.  Ed.  44  L.   Ed.   136;  Montague  v.  Lowry, 

1007;  United  States  v.  Joint  Traffic  193  U.  S.  38  (1901),  48  L.  Ed.  608. 

\ iation.  171    U.  S.  505,  43  L.  Ed.  4  Hopkins  v.  United  States,  171  U. 

259   1898  :   United  States  v.  Northern  S.  578,  43  L.   Ed.  290  (1898);    Ander- 

Securities  Co.,  193  U.  S.  197  (1903),  48  son   v.    United  States,  171  U.  S.  604 

L.  Ed.  079.    Sec-  infra,  :    314,  et  s  q,  (1898),  43  L.  Ed.  300. 

for  fuller  statement  of  these  cases.  s  In  opinion  of  Attorney  General 

2  United    States  v.  Trans-Missouri  Griggs  to  the  Interstate  Com.  Com., 

Freight   Ass'n,    166  U.S.  1.  c.  314.  41  of  Dec.  30,  1899,  2d  Annual  Rep.  of 

■     j.;  J    10  >:.  Com.  for  1899,  p.   10.  it  is  said  that 

■i  Addyston  Pipe  and   Steel  Co.  v.  the  consultation  by  the  representa- 


§  69.]  BUSINESS    AND    LABOR    COMBINATIONS.  93 

The  distinction  is  illustrated  in  the  cases  cited.  In  the  Addys- 
ton  Pipe  case  there  was  a  direct  agreement  for  the  restraint 
of  trade;  in  the  Stockyards  case  there  was  a  restraint  of  trade 
resulting  indirectly  from,  the  exercise  by  the  parties  of  their 
lawful  rights  in  business  associations.  The  former  was 
therefore  obnoxious  to  the  act,  while  the  latter  was  not. 

A  commodity  may  be  the  subject  of  an  illegal  agreement  in 
restraint  of  trade,  in  violation  of  the  act,  although  it  is  still 
subject  to  the  taxing  power  of  a  state.1 

A  combination  is  subject  to  the  act  which  includes  the 
suppression  of  competition  in  the  purchase  of  cattle  in  differ- 
ent states,  and  also  the  suppression  of  competition  in  the  sale 
of  meats  in  different  states,  where  all  these  acts  were  part  of 
a  single  purpose  to  control  and  monopolize  commerce.  Com- 
merce between  the  states,  the  court  said,  was  not  a  technical 
legal  conception,  but  a  practical  one  drawn  from  the  course  of 
business.  When  cattle  are  sent  for  sale  from  a  place  in  one 
state  with  the  expectation  that  the}r  will  end  their  transit  after 
purchase  in  another,  and  when  in  effect  they  do  so  with  only 
the  necessary  interruption  to  find  a  purchaser  at  the  stock- 
yards, and  when  this  is  the  typical  and  constantly  recurring 
course,  the  current  thus  existing  is  a  current  of  commerce 
among  the  states,  and  the  purchase  of  the  cattle  is  a  part  and 
incident  of  such  commerce.2  The  court  could  not  order  the 
defendants  to  compete,  but  it  could  enjoin  them  from  com- 
bining not  to  compete. 

§  69.  Reasonable  and  unreasonable  restraints  of  trade.— 
In  the  Trans-Missouri  Freight  Association  case,  siqyra,  the  ques- 

tives  of  interstate  railroads  in  com-  States,    supra;     United    States     v. 

mittee   concerning    the   changes  in  Swift.  122  Fed.  Rep.  529  (190:>). 

classification,  and  subsequent  inde-  -'Swift    v.    United     States    (Beef 

pendent  action  by  the  railroad  com-  Trust  Case),  25  Sup.  Ct.  Rep.  276,  de- 

panies   in    the    adoption   of   a   new  cided  January  30,   1905,  by  the  Su- 

classification   recommended  by  the  preme  Court  of  the  United   States, 

committee    where   there   is  no   evi-  In  this  case  the  facts  charged  in  the 

dence   that   any    railroad   company  petition  were  in  effect  confessed  by 

acted  under  compulsion  of  a  combi-  the  demurrer  whereon  the  injunction 

nation,  does  not  show  a  combination  was  granted.  The  practical  difficulty 

or  conspiracy  within  the  meaning  of  of  proving  an  agreement  not  tocom- 

the  act.     See  also  In  re  Tyrrell,  51  pete  from  the  fact  of  non-competi- 

Fed.  Rep.  213.  tion  was  not  presented, 
i  Addyston  Pipe  &  S.  Co.  v.  United 


9±  BUSINESS    AND    LABOR    COMBINATIONS.  [§  60. 

tion  was  directly  raised  whether  the  prohibitory  provisions  of 
the  act  of  1S90  applied  to  all  contracts  in  respect  to  interstate 
or  foreign  trade  or  commerce,  in  respect  to  whether  the  re- 
straints were  reasonable  or  unreasonable.  The  majority  of 
the  court,  (four  judges  dissenting,)  ruled  that  the  act  applied  to 
all  restraints,  whether  reasonable  or  unreasonable.  There 
was  no  definite  standard  of  reasonableness  of  rates,  said  the 
prevailing  opinion,  and  if  only  that  kind  of  traffic  which  was 
an  unreasonable  restraint  of  trade  was  within  the  meaning  of 
the  statute,  the  result  would  be  to  leave  the  question  of  rates 
to  the  companies  themselves.  This  ruling  was  reaffirmed  in 
the  -Joint  Traffic  Association  case,  supra. 

In  the  X orthern  Securities  case  Justice  Brewer,  who  had  con- 
curred in  the  prevailing  opinions  in  the  Trans-Missouri  Freight 
Association  Case  and  the  Joint  Traffic  Association  case,  filed  a 
concurring  opinion,1  wherein  he  said  that  while  his  conviction 
was  not  disturbed  that  the  former  cases  were  correctly  decided 
he  tliought  in  some  respects  the  reasons  given  for  the  judgment 
could  not  be  sustained,  and  that  instead  of  holding  that  the 
Anti-Trust  act  included  all  contracts,  in  restraint  of  interstate 
trade,  reasonable  or  unreasonable,  the  ruling  should  have  been 
that  the  contracts  there  presented  were  unreasonable  contracts 
in  restraint  of  trade,  and  as  such  within  the  scope  of  the  act. 

The  act  was  leveled  at  only  unlawful  restraints  and  monop- 
olies. Congress,  he  said,  did  not  intend  to  reach  and  destroy 
those  "minor  contracts  in  partial  restraint  of  trade  which  the 
lono-  course  of  decisions  at  common  law  had  affirmed  were 
reasonable  and  ought  to  be  upheld. "  The  purpose  rather  was 
to  place  the  statutory  prohibition  with  prescribed  penalties 
and  remedies  upon  those  contracts  which  were  in  direct  re- 
straint of  trade,  unreasonable  and  against  public  policy. 

This  concurring  opinion  however,  when  analyzed,  substanti- 
al lv  places  the  construction  of  the  act  where  it  had  already 
been  placed  in  the  Stockyards  cases,  where  it  was  held  that  the 
net  did  not  apply  to  agreements  among  business  men  for  the 
•  better  conduct  of  their  own  business  which  incidentally  affect 
interstate  commerce.  As  this  concurring  opinion  holds  that  the 
restraint  of  competition  in  each  of  the  railroad  cases  was  un- 
reasonable, it  would  seem  to  follow  under  this  view  that  any 

1  1  Supra. 


§  70.]  BUSINESS    AND    LABOR    COMBINATIONS.  95 

agreement  for  the  restraint  of  competition  by  interstate  carriers 
would  be  an  unreasonable  restraint  of  trade,  and  therefore  ob- 
noxious to  the  law. 

§  70.  Contracts  in  restraint  of  trade   under  the  act. — 

Judge  Taft,  then  on  the  circuit  bench,  in  the  opinion  of  the 
court  of  appeals  of  the  sixth  circuit,  in  the  Addyston  Pipe  & 
Steel  Company  case,1  in  an  exhaustive  opinion,  holding  that 
the  contract  in  question  was  violative  of  the  act,  and  was  also 
unenforcible  at  common  law,  laid  down  the  rule  that  no  con- 
tractual restraint  of  trade  was  en  forcible  at  common  law  un- 
less it  was  merety  ancillary  to  some  lawful  contract  involving 
some  such  relations  as  vendor  and  vendee,  partnership,  em- 
ployer and  employee,  and  necessary  to  protect  the  covenantee 
in  the  enjoyment  of  the  legitimate  fruits  of  the  contract,  or  to 
protect  him  from  the  dangers  of  those  unjust  acts  by  the  other 
parties.  The  main  purpose  of  the  contract  suggests  the  meas- 
ure of  protection  needed,  and  furnishes  a  sufficiently  uniform 
standard  for  determining  the  reasonableness  and  validity  of 
the  restraints.  But  where  the  sole  object  of  both  parties,  in 
making  the  contract,  is  merely  to  restrain  competition  and 
enhance  and  maintain  prices,  the  contract  is  void  and  unen- 
forcible at  common  law,  and  where  made  in  interstate  com- 
merce is  violative  of  the  act  of  1800. 

In  this  case  there  was  an  allotment  of  territory  comprising 
a  large  part  of  the  United  States  among  a  number  of  companies 
engaged  in  the  manufacture  of  iron  pipe,  and  in  that  territory 
competition  was  eliminated  through  this  allotment  of  territory 
and  through  a  system  of  pretended  bids  giving  an  appearance 
of  active  competition  at  public  lettings  when   there  was  none. 

Where  the  contract  is  thus  for  the  direct  suppression  of 
competition,  it  is  not  necessary  for  trade  in  the  commodity  to 
be  completely  suppressed  in  order  to  render  the  combination 
one  in  restraint  of  trade.  It  is  sufficient  that  the  contract 
operates  in  restraint  of  trade.  In  determining  whether  an  as- 
sociation of  manufacturers  or  dealers  constitutes  a  combination 
in  restraint  of  trade  of  interstate  commerce,  the  court  will  con- 
sider the  whole  agreement  in  all  its  provisions.  Thus,  an  agree- 
ment between  manufacturers  of  tiles  not  to  sell  unset  tiies  to 
any  one  other  than  members  for  less  than  list  prices,  which 

1 29  C.  C.  A.  141,  and  85  Fed.  Rep.  271  (1898). 


90  BUSINESS    AND    LABOR    COMBINATIONS.  [§  71. 

were  fifty  per  cent  higher  than  the  prices  to  members,  and 
membership  was  dependent  on  conditions,  one  of  which  was 
the  carrying  of  at  least  §3,000  worth  of  stock,  was  held  to  con- 
stitute part  of  a  scheme  involving  the  enhancement  of  prices, 
and  that  the  whole  thing  was  so  bound  together  that  the  trans- 
actions within  the  state  were  inseparable  and  became  part  of 
a  scheme  which,  when  carried  out,  amounted  to  and  was  a  com- 
bination in  restraint  of  interstate  commerce.1 

The  circuit  court  of  appeals  for  the  ninth  circuit  in  a  recent 
case- applied  the  decisions  in  the  Knight  and  the  Addyston 
cases  to  a  combination  which  it  said  occupied  a  ground  inter- 
mediate between  the  other  two.  The  combination  was  one  of 
manufacturers  of  red  shingles  in  the  state  of  Washington  and 
provided  for  the  control  of  production  and  prices.  But  it  ap- 
peared that  more  than  four-fifths  of  the  manufactured  articles 
were  produced  for  interstate  trade,  and  that  the  purpose  of  the 
combination  was  to  diminish  competition  in  the  production  and 
to  advance  the  price  in  that  trade.  The  court  said  that  the  act 
did  not  require  that  the  combination  should  by  its  terms  refer 
to  interstate  commerce,  and  that  it  was  enough  if  its  purposes 
and  elfect  were  necessarily  to  restrain  such  commerce.  If  it 
were  otherwise,  all  combinations  in  the  restraint  of  interstate 
trade  may  be  so  expressed  in  words  as  to  avoid  the  statute. 
The  combination  was.  therefore,  held  to  be  one  in  restraint  of 
trade  at  common  law  and  violative  of  the  statute  of  1S90. 

§  71.  Contracts  restricting  sales  by  rebates  not  within 
the  act. —  The  distinction  between  contracts  directly  and  sub- 
stantially restricting  free  competition,  and  those  which  only 
incidentally  and  indirectly  restrictcompetition,  was  illustrated 
in  a  recent  decision  of  the  circuit  court  of  appeals  for  theeighth 
circuit,  composed  of  three  of  the  four  judges  who  rendered  the 
opinion  in  the  circuit  court  construing  the  act  in  the  Northern 
Securities  case.:!  In  this  case  a  tobacco  company  sold  its  goods 
to  jobbers  by  allotting  to  the  intending  purchaser  an  amount 
which  he  was  required  to  buy  during  each  succeeding  period 

1  Montague  v.  Lowry,  193   U.  S.  38  Co..  12"5  Fed.  Rep.    454   (November, 

(1904),  18  L  Ed.  608.    "  1903).  60  C.  C.  A.  290;  Phillips  v.  Iola 

-  Gibbs  v.  McNeeley,  55  C.  C.  A.  70,  Portland  Cement  Co.,  125  Fed.  Rep. 

118  Fed.  Rep.  120  (1902  .  593  (1903),  61  C.  C.  A.  19. 

;i  Wliitwell  v.  Continental  Tobacco 


§  71.]  BUSINESS    AND    LABOR    COMBINATIONS.  97 

of  four  months,  this  allotment  being  in  excess  of  the  amount 
which  he  would  be  able  to  sell  during  that  time.  The  price 
of  the  goods  comprising  the  allotment  was  fixed  so  high  that 
if  the  purchaser  paid  the  price,  he  could  not  make  any  profit 
by  buying  and  selling  the  goods.  The  requirement  was  made 
that  each  purchaser  should  refrain  from  dealing  with  tobacco 
made  by  competitors.  If  the  purchaser  complied  with  the  re- 
quirements, his  allotment  was  reduced  [to  the  amount  he  was 
able  to  sell  and  he  was  paid  back  such  a  percentage  of  the  ag- 
gregate price  of  the  goods  he  bought  by  way  of  rebate  that 
the  handling  of  the  commodities  was  by  this  repayment  alone 
made  profitable  to  him.  If  the  purchaser  refused  to  comply 
with  the  requirement,  the  allotment  and  price  was  not  reduced 
so  that  the  purchase  was  necessarily  unprofitable.  The  jobber 
who  did  deal  with  the  plaintiffs  on  this  basis  refused  to  refrain 
from  handling  the  goods  of  competitors,  and  plaintiff  refused 
to  reduce  the  allotment  or  prices  and  thereupon  the  plaintiff, 
being  unable  to  purchase  the  goods  elsewhere,  brought  suit  for 
treble  damages  under  £  7  of  the  act.  The  court  said  that  the 
parties  were  not  dealing  in  articles  of  prime  necessity, 
such  as  grain  and  coal,  nor  were  thej^  rendering  public  or  quasi 
public  services,  like  railroads  and  gas  corporations.  Each 
therefore  had  the  right  to  sell  its  commodities  at  any  price 
and  to  fix  the  prices  and  terms  upon  which  it  would  sell  them, 
and  the  persons  with  whom  it  made  contracts  of  sale,  and  that 
they  were  deprived  of  none  of  these  rights  by  the  Anti-Trust 
Act.  There  was  no  competition  between  the  plaintiff  and  de- 
fendant and  therefore  no  restraint  of  competition  by  the  con- 
tract. The  court  said  that  it  had  been  settled  by  repeated  de- 
cisions of  the  Supreme  Court  whether  the  contract  was  in; 
restraint  of  trade  and  in  violation  of  the  act  must  be  tried  not 
by  the  intent  with  which  the  combination  was  made,  nor  by 
its  effect  upon  traders,  purchases  or  consumers,  but  by  the  nec- 
essary effect  which  it  has  in  defeating  the  purpose  of  the  law.1 
As  the  contract  in  question  before  the  court  did  not  defeat  the 
purpose  of  the  act,  but  only  enabled  the  vendor  to  extend  his 
own  business  and  it  was  open  to  his  competitiors  to  do  the 
same,  it  was  held  not  violative  of  the  act. 

1  See  also  decision  of  the  circuit  court  (Judge  Jackson,  afterwards  of  the 
Supreme  court),  in  the  case  of  In  re  Greene,  52  Fed.  Rep.  104. 

7 


98  BUSINESS    AND    LAIS0R    COMBINATIONS.  [§   7.2. 

The  reasoning  of  the  opinion  excludes  from  the  act  the  so- 
called  factors'  agreements  or  any  form  of  agreements  whereby 
the  seller  seeks  to  control,  through  rebates  or  otherwise,  the 
trade  of  his  own  customers.1  It  is  not  restraint  of  trade  in  the 
ordinary  use  of  the  term,  but  restraint  of  competition  tending 
to  monopolization  of  the  market  in  interstate  or  foreign  com- 
merce which  is  condemned  by  the  act. 

§72.  Monoply  within  the  meaning  of  the  act.— The  sec- 
ond section  of  the  act  makes  unlawful  and  punishable  the  mo- 
nopolizing, or  attempting  to  monopolize,  or  combining  or  con- 
spiring to  monopolize  any  part  of  trade  or  commerce  among 
the  several  states.  The  meaning  of  the  term  "  monopolize  "  in 
this  connection  was  discussed  by  Mr.  Justice  Jackson,2  then  cir- 
cuit judge,  afterwards  of  the  supreme  bench,  in  an  early  case 
under  the  act.  He  said  it  was  not  very  clear  what  congress 
meant  in  this  second  section,  but  that  it  was  very  certain  that 
congress  could  not  and  did  not  by  this  enactment  attempt  to 
prescribe  limits  to  the  acquisition  either  by  a  .private  citizen 
or  state  corporation,  of  property  which  might  become  subject 
to  interstate  commerce,  or  to  declare  that  when  the  accumula- 
tion or  control  of  property  by  legitimate  and  lawful  methods 
reached  such  magnitude  or  proportions  as  enabled  the  owner 
or  owners  to  control  the  traffic  therein,  or  any  part  thereof 
among  the  states,  criminal  offence  was  committed  by  such 
owner  or  owners.  In  other  words,  it  is  not  the  magnitude  of  a 
party's  business  with  the  incidental  or  indirect  powers  thereby  ac- 
quired, which  constitutes  the  monoply  or  attempt  to  monopolize. 

Monopoly,  in  a  legal  sense  therefore  as  it  is  intended  in  the 

i  The  same  court  in  Passaic  Print  spiracy  by  offering  goods  of  a  cer- 
Goods  Co.  v.  Ely  &  Walker  Dry  tain  manufacturer,  which  they 
Goods  Co..  44  C.  C.  A.  426.  and  105  owned,  at  a  cut  price  for  the  pur- 
Fed.  Rep.  103.  also  62  L.  R.  A.  673,  pose  of  injuring  his  trade  or  depres- 
held  that  a  merchant  did  not  subject  sing  the  market  price  of  his  product, 
himself  to  liability  of  an  action  for  Sanborn,  J.,  dissenting.  The  court  in 
damages  to  a  manufacturer  by  send  this  case  discussed  and  applied  the 
Lng  circulars  to  the  retail  trade  offer-  ruleof  Allen  v.  Flood,  1  A.  C.  (1898),  1. 
ing  a  small  quantity  of  such  manu-  2  In  re  Greene,  52  Fed.  Rep.  104 
facturer's  products,  which  he  owned,  (1892).  The  court  in  this  case  cited 
at  a  cut  price  for  the  purpose  of  de-  approvingly  Mogul  Steamship  Co.  v. 
stroying  or  injuring  such  manufac-  McGregor,  Appeal  Cases,  part  1,  p. 
turer's  trade  and  depressing  his  goods  25,  decided  by  the  house  of  lords  in 
in  the  market,  and  that  merchants  December,  1891. 
i_ould  not  be  held  liable  for  a  con- 


[§  73.  BUSINESS    AND    LABOR    COMBINATIONS.  99 

act,  means  the  engrossing  trade  to  one's  self  by  means  which 
prevent  other  parties  from  engaging  in  fair  competition  with 
him.  As  defined  by  Blackstone,1  "  it  is  the  grant  of  exclusive 
right  from  the  sovereign  power."  There  must  be  therefore 
an  exclusive  right  or  privilege  on  the  one  side  and  a  restric- 
tion or  restraint  on  the  other,  which  operates  to  prevent  the 
exercise  of  a  right  or  liberty  open  to  the  public  before  the  mo- 
nopoly is  secured. 

In  the  case  cited  the  ownership  of  seventy  distilleries  in  the 
country,  constituting  seventy-five  per  cent,  of  the  distillery 
products  of  the  country,  did  not  make  a  monopoly  because  all 
other  persons  who  saw  fit  to  engage  in  the  trade  were  at  lib- 
erty to  do  so.  Neither  did  paying  of  rebates  to  parties  who 
dealt  exclusively  with  the  company,  constitute  an  attempt  to 
monopolize,  as  the  purchaser  was  left  at  liberty  to  buy  where 
he  pleased,  and  all  other  sellers  of  the  article  were  left  unre- 
strained in  offering  at  greater  inducements.  The  agreement 
of  rebate  was  wholly  unilateral  until  there  was  compliance 
with  the  conditions  by  the  purchaser. 

The  same  construction  of  the  term  "  monopolize  "  was  made 
in  the  Continental  Tobacco  case,  by  the  Circuit  Court  of  Ap- 
peals of  the  eighth  circuit.'-'  The  court  said  the  purpose  of  the 
second  section  was  the  same  as  that  of  the  first,  to  prevent  the 
restriction  of  competition,  and  the  second  section  ought  to  re- 
ceive similar  interpretation.  It  was  not  the  purpose  of  the 
second  section  to  prohibit  or  punish  the  customary  and  univer- 
sal attempts  of  all  manufacturers  and  traders  engaged  in  inter- 
state commerce  to  monopolize  a  fair  share  of  it  in  the  neces- 
sary conduct  and  desired  enlargement  of  their  business,  while 
their  attempts  left  their  competitors  free  to  make  successful  en- 
deavors of  the  same  kind. 

$  73.  Monopoly  in  law  and  in  fact  distinguished.—  The 
construction  in  these  cases  is  based  upon  the  absence  of  an 
agreement  for  the  restriction  of  competition  between  business 
competitors,  and  that  the  monopolizing  is  simply  the  effort  of 
the  trader  to  secure  his  own  business,  and  that  there  is  no 
monopoly  in  the  legal  sense  without  some  exclusive  privilege. 

1  4  Blackstone  Com.,  159;  Case  of  Habite  of  Monopolies  (1623),  21  Jas. 
Monopolies  (1601),  11  Co.  Rep.    846;     1.  c.  3. 

2  Supra,  p.  96  n.  3. 


100  BUSINESS    AND    LABOR    COMBINATIONS.  [§  74. 

Monopoly  in  this  sense  can  in  this  country  be  based  only  upon 
rights  under  patent  or  copyright  laws.  Monopoly  in  fact, 
however,  though  not  in  law,  may  exist  where  a  party  is  in 
possession  of  the  only  source  of  supply,  as  where  the  owners 
of  all  the  coal  available  for  the  supply  of  a  locality  are  com- 
bined in  a  single  corporation.  Other  illustrations  may  be 
suggested. 

While  this  construction  of  the  section  seems  the  only  admis- 
sible one,  it  is  obvious,  in  view  of  the  facility  of  eliminating 
competition  by  incorporating  under  state  laws,  that  the 
effectiveness  of  the  act  is  now  mainly  limited  to  the  restraint 
of  combinations  between  interstate  railroads. 

The  supreme  court  remarked  in  the  Freight  Association  Case, 
supra,  that  it  was  readily  seen  from  the  ruling  in  the  Knight 
Company  Case,  supra,  that  if  the  act  did  not  apply  to  the 
transportation  of  commodities  by  railroads  from  one  state  to 
another,  or  to  foreign  nations,  its  application  was  so  greatly 
limited  that  the  whole  act  might  as  well  be  held  inoperative. 

§  74.  No  distinction  in  the  act  between  necessaries  of 
life  and  other  articles. —  In  the  opinion  of  the  circuit  court 
of  appeals  in  the  Continental  Tobacco  Company  Case,  supra, 
it  is  said  that  tobacco,  the  subject  of  the  contract  in  question, 
was  not  an  article  of  "prime  necessity,"  such  as  grain  or  coal. 
This  was  doubtless  said  in  view  of  the  recognized  principle 
that  the  subject  of  the  contract  will  be  considered  in  the 
determination  of  the  reasonableness  of  contracts  in  restraint 
of  trade.  The  question  in  such  cases  is  whether  the  public 
welfare  is  involved,  and,  if  not,  whether  under  the  particular 
circumstances  of  the  case  the  restraint  upon  one  party  is  not 
greater  than  the  protection  to  the  other  requires.1  In  deter- 
mining the  enforcibility  at  common  law  of  a  contract,  it 
might  be  material  that  it  related  to  a  subject  of  "prime  neces- 
"  in  a  restricted  territory,  and  this  might  be  a  circum- 
stance affecting  the  reasonableness  of  the  restraint.2  This  fact 
has  also  been  held  material  in  determining  whether  combina- 

iFowle  v.  Park,  131   U.  S.  88,1.  c.  in  the  Addyston  Pipe  &  Steel  Co. 

97    lvv>9),  33  L.  Ed.  74;  Gibbs  v.  Con-  case,  supra,  that  the  cases  showed 

soli. lated  Gas  Co.  130  U.S.  396  (1888),  that  the  common  law  rule  against 

32  L.  Ed.  879.     See  also  Oliver  v.  Gil-  restraint  of  trade  extended   to   all 

more,  52  Fed.  Rep.  563.  articles  of  merchandise,  and  that  the 

2 It  was  said,  however,  by  Taft,  J.  introduction  of  the  distinction    (of 


§  71.]  BUSINESS    AND    LABOK    COMBINATIONS.  101 

tions  are  injurious  to  trade  or  commerce  in  the  jurisdictions 
where  the  common  law  of  conspiracy  prevails.1 

In  the  same  connection  the  court  referred  to  the  fact  that 
the  contract  in  question  was  not  that  of  a  public  service  cor- 
poration, recognizing  that  in  the  case  of  such  corporations 
there  was  a  different  standard  of  determining  the  reasonable- 
ness of  contracts  in  alleged  restraint  of  trade. 

There  is,  however,  nothing  in  the  Anti-Trust  Act  of  1890 
warranting  the  limitation  of  its  prohibitions  according  to  what 
a  court  may  adjudge  are  or  are  not  necessaries  of  life.  Tobacco 
and  whiskey,  and  many  other  articles,  may  not  be  of  such 
prime  necessity  as  grain  and  coal,  but  in  a  complicated  and 
progressive  industrial  civilization  the  standard  of  living  of  the 
masses  is  constantly  advancing,  and  the  comforts  and  even 
the  luxuries  of  one  generation  are  the  necessities  of  another. 
At  common  law,  contracts  in  general  restraint  of  trade  are 
unenforcible,  irrespective  of  the  subjects  of  the  contract,  and 
it  was  only  in  the  determination  of  the  validity  of  contracts 
in  partial  restraint  of  trade  that  the  subjects  of  the  contracts 
were  considered.  Monopolies  were  first  judicially  pronounced 
illegal  as  against  common  right  in  a  suit  involving  a  royal 
grant  of  a  monopoly  in  playing  cards.2  The  mediaeval 
statutes  long  since  repealed  in  England  have  never  been  in 
force  in  the  United  States  in  the  law  of  interstate  commerce, 
nor  is  there  any  common  law  of  conspiracy  in  the  laws  of  the 
United  States.."  The  only  federal  law  restraining  freedom  of 
interstate  commerce  is  the  Anti-Trust  Act.  Under  this  stat- 
ute, therefore,  there  is  no  basis  for  any  distinction  between 
articles  of  prime  necessity  and  other  articles.  The  owners  of 
both  classes  of  property  have  the  same  rights  under  the  law, 
and  are  subject  to  the  same  obligations.4 

articles  of  prime  necessity)  only  dealers  was  held  an  unlawful  con- 
furnished  another  opportunity  for  spiracy  under  a  statute  making  it  a 
courts  to  give  effect  to  the  varying  misdemeanor  to  conspire  to  commit 
economical  views  of  its  members,  any  act  injurious  to  trade  or  corn- 
It  might  be  difficult  to  say  why  it  merce. 

was  any  more  important  to  prevent  2See  case  of  Monopolies,  11  Coke 

restraints  of  trade  in  beer,  mineral  Reps.  84b  (1601). 

water,  leather,  cloth,  than  of  trade  3  See  infra,  §  82  et  seq. 

in  certain  shades  of  glue.  4  The  Forestalling  Statute,  25  Ed- 

1  In  People  v.  Sheldon,  139  N.  Y.  ward    III,   enacted    in    1350,    made 

251    (1893),   a   combination    of   coal  criminal  the  forestalling  of  "wine 


102  BUSINESS    AND    LABOR    COMBINATIONS.  [§  75. 

A  contract  directly  affecting  interstate  commerce,  which 
would  be  unenforcible  at  common  law  as  in  restraint  of  trade, 
whatever  the  subject,  would  be  violative  of  the  Anti-Trust 
Act.  On  the  other  hand,  it  would  seem  that  a  contract  in 
private  business  relating  to  interstate  commerce,  whatever  its 
subject,  which  would  be  valid  and  enforcible  at  common  law 
as  imposing  only  a  reasonable  restraint,  and  as  ancillary  to  a 
valid  contract,  would  not  be  violative  of  the  federal  act. 

|  75.  Xo  application  to  commerce  within  a  state. —  Al- 
though the  jurisdiction  of  congress  over  commerce  among  the 
states  and  over  foreign  commerce  is  full  and  complete,  it  has 
none  over  that  which  is  wholly  within  a  state,  and  therefore 
none  over  combinations  or  agreements  so  far  as  they  relate  to 
a  restraint  of  such  trade  or  commerce;  nor  does  it  acquire 
any  jurisdiction  over  that  part  of  a  combination  or  agreement 
which  relates  wholly  to  commerce  within  a  state  by  reason  of 
the  fact  that  the  combination  also  covers  and  regulates  com- 
merce which  is  interstate.  This  fundamental  principle,  which 
not  only  controls  the  construction  of  the  act  of  July  2,  1890, 
but  also  the  power  of  congress  to  enact  any  legislation  con- 
cerning commercial  combinations,  was  forcibly  illustrated  in 
the  case  of  Addyston  Pipe  &  Steel  Co.,  supra.  The  combina- 
tion in  that  case  included  both  state  and  interstate  commerce. 
As  to  such  of  the  defendants  as  might  reside  and  carry  on 
business  in  the  same  state  where  the  pipe  provided  for  in  any 
particular  contract  was  to  be  delivered,  the  sale,  transporta- 
tion and  delivery  of  the  pipe  by  them  under  that  contract 

and  other  victuals,  wares  and  other  grain,  meal,  flour,  cattle  and  sundry 

merchandise  that  came  to  the  good  other  sorts  of  victuals  have  a  tend- 

towns  of  England  by  land  or  water."'  ency  to  discourage  the  growth  and 

The  statute  of  Edward  VI  against  to  enhance  the  price  of  the  same. 

-  regrators,  forestalled  and  grocers  "  which  statutes  if  put  into  execution 

included  in  merchandise,  victuals  or  would  bring  great  distress  upon  the 

an}- other  thing  whatsoever.     '"Cat-  inhabitants  of  many  towns  of  this 

tie,  sheep,  grain,  butter,  cheese,  fish,  kingdom,  and  particularly  upon  the 

or  other  dead  victual  whatsoever,"  cities  of  London  and  Westminster." 
were -also  included.     These  statutes        In  view  of  the  ruling  in   Rex  v. 

were  all   repealed   in   1771,  Act  of  Waddington,  1  East,   167,  that  the 

George    III,  71.     The   preamble   to  offenses  had  existed  at  common  law 

the    repealing    act    is    as    follows  :  and  the  repeal  of  the  statutes  was 

"  Whereas,  it  has  been  found  by  ex-  insufficient,  an  act  was  passed,  7  and 

perience  that  the  restraints  laid  by  8  Victoria,  c.  24,  in  1844,  in  express- 

ral    statutes    upon    dealing    in  terms  abolishing  the  offenses. 


§   76.]  BUSINESS    AND    LABOR    COMBINATIONS.  103 

would  be  a  transaction  wholly  within  the  state,  and  the  su- 
preme court  said,  modifying  the  judgment  of  the  circuit  court 
of  appeals  in  that  respect,  that  the  statute  would  not  be  appli- 
cable to  them  in  that  case.  They  might  make  any  combina- 
tion they  choose  with  reference  to  the  contract,  although  it 
happened  that  some  non-resident  of  the  state  finally  obtained 
it.  In  the  language  of  the  court,  in  brief,  their  right  to  com- 
bine in  regard  to  a  proposition  for  pipe,  deliverable  in  their 
own  state,  could  not  be  reached  by  the  federal  power  derived 
from  the  commerce  clause  in  the  constitution.  A  combination 
violative  of  the  act  may,  however,  include  a  series  of  acts,  con- 
cluded in  different  states,  when  they  are  part  of  purpose,  as  in 
the  purchase  and  shipment  of  cattle  to  control  and  monopolize 
commerce  between  the  states.1 

§  76.  Application  to  state  holding  companies. —  The 
Northern  Securities  case,  supra,  was  novel  in  that  it  decided 
that  the  corporation  organized  under  the  laws  of  a  state  and 
empowered  under  its  charter  to  hold  the  stock  of  other  corpo- 
rations, was  prohibited  by  this  act  from  holding  the  stock  of 
competing  interstate  railroad  corporations.  The  illegal  com- 
bination was  founded  upon  the  fact  of  control  of  competing  rail- 
roads in  a  single  authority  and  the  resulting  power  of  direct 
suppression  of  competition  through  such  control.  Thayer,  J., 
in  the  circuit  court,  said  that  a  state  could  not  invest  a  corpo- 
ration organized  under  its  laws  to  do  acts  in  its  name  wiiich 
operate  in  restraint  of  trade  and  commerce,  and  that  the  court 
would  not  consider  whether  a  combination  would  be  of  bene- 
fit to  the  public;  but  that  a  holding  corporation  organized 
under  the  laws  of  the  state  was  in  violation  of  the  Anti-Trust 
Act,  since  it  destroyed  any  active  form  of  competition  between 
the  two  roads,2  and  it  was  immaterial  that  each  company  had 
its  own  board  of  directors. 

The  holding  corporation  was  condemned  in  this  case,  not 
because  it  was  a  "holding  corporation"  merely,  but  because  it 
held  the  stock  of  subsidiary  corporations  directly  engaged  in 
interstate  commerce,  and  thus  controlled  competition  as  be- 
tween those  companies.  The  act,  as  such,  has  nothing  to  do 
with  holding  corporations  where  the  subsidiary  corporations 

i  See    Chicago    Meat  Trust  Case,        2 120  Fed.  Rep.  721. 
supra. 


104  BUSINESS    AND    LABOB    COMBINATIONS.  [§    .7. 

are  not  engaged  as  competitors  directly  employed  as  public 
carriers  in  interstate  commerce.  The  right  of  the  holding  cor- 
poration in  other  cases  depends  upon  the  authorization  of  its 
own  charter  and  the  laws  of  the  states  whereunder  the  sub- 
sidiary l  companies  are  organized  and  do  business. 

§  ??.  The  labor  legislation  of  Congress. —  The  labor  legis- 
lation of  Congress  has  not  been  limited  to  the  relations  of  labor 
in  interstate  commerce,  but  certain  features  of  this  legislation 
are  distinctly  related  to  the  interstate  commerce  relations  of 
labor,  and  the  provisions  of  both  the  Interstate  Commerce 
and  the  Anti-Trust  Acts  relating  to  unlawful  combinations  in 
interstate  commerce  have  been  construed  as  applicable  to  labor 
as  well  as  to  business  combinations.  The  general  labor  legis- 
lation of  congress  is  therefore  properly  considered  in  this  con- 
nection. 

The  Bureau  of  Labor  created  under  the  act  of  June  27, 1884, 
was  made  a  Department  of  Labor  under  the  act  of  June  13, 
I  — ,2  The  general  design  and  duties  of  the  Commissioner  of 
Labor  were  declared  by  the  act  "to  acquire  and  diffuse  among 
the  people  of  the  United  States  useful  information  on  subjects 
connected  with  labor  in  general  in  the  most  comprehensive 
sense  of  the  word,  and  especially  upon  its  relation  to  capital, 
the  hours  of  labor,  the  earnings  of  laboring  men  and  women, 
and  the  general  means  of  promoting  their  social,  intellectual 
and  moral  prosperity." 

The  commissioner  was  charged  to  investigate  conditions  of 
labor,  wages,  cost  of  living,  effect  of  customs  laws,  what  arti- 
cles were  controlled  by  trusts,  combinations  of  capital,  and 
what  effect  trusts  and  other  combinations  of  capital  had  on 
production  and  prices.  The  commissioner  was  also  charged 
to  investigate  the  cases  of  disputes  between  employees  and 
employers. 

By  the  act  of  February  14,  1003,3  the  Department  of  Com- 
merce and  Labor  was  established,  and  the  Department  of  Labor 
made  a  part  of  this  department. 

i  The  Supreme  Court  said,  in  the  purposes  been  regarded  in  the  nature 

.Joint  Traffic  Association  Case,  supra,  of  a  contract  in  restraint  of  trade." 

I.  c.  p.  567,  that  "  never  to  its  knowl-  -'  1  Compiled  Statutes,  302. 

had  the  formation  of  corpora-  31  Supp.  to  Comp.  Stats.,  p.  41. 
tions  for  business  or  manufacturing 


§§    78,   79.]  BUSINESS    AND    LABOR    COMBINATIONS.  105 

§  78.  Regulation  of  interstate  commerce  in  relation  to 
labor. —  Congress  also  exercised  its  power  of  regulation  in  the 
effort  to  harmonize  the  relations  of  capital  and  labor  in  inter- 
state railroads.  The  first  legislation  of  this  character  was  the 
act  of  June  29,  1SS6.1  This  act  was  not  limited  to  the  employ- 
ees of  carriers,  but  authorized  the  incorporation  of  any  associ- 
ation of  working  people  having  two  or  more  branches  in  the 
states  or  territories  of  the  Union,  and  the  incorporation  was 
affected  by  filing  articles  in  the  office  of  the  recorder  for  the 
District  of  Columbia.  Provision  was  made  for  the  establish- 
ing of  branches  and  sub-unions  in  any  territory  of  the  United 
States. 

The  act  of  June  1,  1898,2  was  entitled  "  An  act  concerning 
carriers  engaged  in  interstate  commerce  and  their  employees," 
and  by  its  terms  only  applied  to  employees  engaged  in  the 
railroad  train  service,  excluding  employees  of  street  railroads 
Under  section  2  of  this  act  of  1S9S,  the  chairman  of  the  Inter- 
state Commerce  Commission  and  the  Commissioner  of  Labor 
were  required  to  put  themselves  in  communication  with  the 
parties  to  the  controvers}7  between  a  carrier  and  its  employees 
threatening  to  interrupt  the  business  of  the  carrier,  and  to  use 
their  best  efforts  by  mediation  and  conciliation  to  amicably 
adjust  the  same;  and  if  these  efforts  were  unsuccessful,  to  en- 
deavor to  bring  about  a  voluntary  arbitration  of  the  contro- 
versy in  accordance  with  the  provision  of  the  act.  Provision 
is  made  in  the  act  for  such  voluntary  arbitration.  This  act 
also  amends  the  Xational  Trade  Union  Incorporation  Act,  by 
providing  that  the  articles  of  incorporation  shall  set  forth 
that  an}r  member  shall  cease  to  be  such  by  participating 
in  or  inciting  force  or  violence  against  persons  or  property  du- 
ring strikes,  lockouts  or  boycotts,  or  by  seeking  to  prevent 
others  from  working  through  violence,  threats  or  intimidation. 

§  79.  The  courts  on  labor  combinations  in  relation  to 
interstate  commerce. —  As  there  has  been  no  national  incor- 
poration of  trade  unions,  there  has  been  no  judicial  construction 
or  practical  application  of  the  act.     It  was  said,  however,  by 

1  3  Com.  Stats.,  p.  3204,  infra,  §  376.  arbiti-ation  for  settling  controversies 

-  3  Com.  Stats.,  p.  3205,  infra,  §  377.  between  interstate  carriers  and  their 

This  repealed  the  earlier  statute  of  employees. 

'Oct.  1,  1888,  providing  for  boards  of 


106  BUSINESS    AND    LABOR    COMBINATIONS.  [§   SO. 

Justice  Harlan,  in  an  opinion  rendered  in  1804,1  with  reference  to- 
the  original  act  of  1886  legalizing  the  incorporation  of  national 
trade  unions,  that  it  did  not  in  any  degree  sanction  illegal  cora- 
binations,  but  that  its  purpose  in  authorizing  working  people 
to  better  their  own  conditions  by  such  combinations  was  most 
praiseworthy  and  should  be  sustained  by  the  courts  whenever 
their  power  to  that  end  was  properly  invoked. 

Neither  has  there  been  any  arbitration  under  the  act  of 
June  1,  1898.  This  act  therefore,  as  the  Trade  Union  Incor- 
poration Act,  has  thus  far  been  effective  only  as  a  declaration 
of  national  policy.2  Judge  Adams  of  the  eastern  district  of 
Missouri  called  attention  to  this  arbitration  act  in  dissolving 
the  injunction  in  the  Wabash  Eailroad  Case,3  expressing  a  hope 
that  the  parties,  if  unable  to  adjust  their  differences,  would 
submit  the  questions  in  dispute  to  the  board  of  arbitration  pro- 
vided by  this  act. 

so.  The  federal  judicial  power  and  labor  combinations. 
While  the  federal  courts  have  been  frequently  called  upon  in 
-  involving  trade  disputes,  particularly  in  cases  of  alleged 
intimidation  and  interference  with  non-union  labor,  where  the 
jurisdiction  is  invoked  on  account  of  diverse  citizenship  and  no- 
federal  question  is  involved,4  there  have  been  comparatively 
few  adjudications  involving  questions  directly  relating  to  in- 
terstate commerce,  and  these  have  usually  been  with  relation 
to  interstate  carriers,  and  the  interference  with  their  interstate 
traffic  growing  out  of  contentions  with  their  employees. 

Railroad  labor  organizations  have  been  considered  in  the 

1  Arthur  v.  Oakes,  infra.  Reliable  Lodge,  111   Fed.  Rep.  264; 

-'  There  seems  to  have  been  a  sim-  Elder  v.  Whiteside,  72  Fed.  Rep.  724 

ilar  experience  in  England.     An  at-  (La.);  Consolidated  Steel  &  Wire  Co. 

tempt  was  made  in  1824  (5  Geo.  IV,  v.  Murray,  80  Fed.  Rep.  811;  Makall 

<•.  96),  and  again   in  1867  (80,  31  Vic,  v.    Ratchford,  82  Fed.   Rep.   41  (W. 

<-.  in") ,  and  in  1872  (35,  36  Vic,  c.  46),  Va.);    Coeur  d'Alene    Consolidated 

i.,   provide  for  settlements  of  trade  Mining  Co.  v.  Miners  Union,  51  Fed. 

disputes.     But  the  acts  were  never  Rep.  260  (Idaho);  American  Steel  & 

used  and  were  finally  replaced  by  the  Wire  Co.  v.  Wire  Drawers,  etc.,  90- 

i  onciliation  Act  of  ls%  (59,  60  Vic,  Fed.  Rep.  608  (No.  Disk   of  Tenn.); 

c.  30).  United   States  v.    Weber,    114  Fed. 

Wabash  Railroad  Co.  v.  Hanna-  Rep.   950  (West.  Dist.  of  Va.);    Otis 

han  et  al.,  121  Fed.  Rep.  563.  Steel  Co.  v.  Local  Union  No.   18.  110 

^'jiithern   Ry.   Co.   v.  Machinists  Fed.    Rep.    698;     Hopkins  v.  Oxley 

I.  cal  Union,  111  Fed.  Rep.  49 (West.  Stave  Co.,  28  C.  C.  A.  99, and  83  Fed. 

Dist.  of  Tenn);  Allis- Chalmers  Co.  v.  Rep.  912,  affirming  72  Fed.  Rep.  695. 


§  80.]  BUSINESS    AND    LABOR    COMBINATIONS.  107 

judicial  construction  and  application  of  both  the  Interstate 
Commerce  Act  of  18S7  and  the  Anti-Trust  Act  of  1890.  In 
the  industrial  disturbances  of  1893  and  1891  there  were  a  num- 
ber of  injunctions  sued  out  in  the  different  circuit  courts 
enjoining  interference  with  interstate  commerce,  some  of  these 
by  railroad  companies  enjoining  interference  with  the  inter- 
change of  traffic  with  connecting  railroads;1  also  applications 
by  receivers  of  railroads  for  protection  against  interference 
with  their  possessions  and  operation,2  and  also  direct  suits  by 
the  United  States  under  the  provisions  of  the  Anti-Trust  Act 
enjoining  unlawful  interference  with  interstate  commerce  and 
the  mails.3 

It  was  held  in  these  cases  that  the  Anti-Trust  Act  was  ap- 
plicable to  any  combinations  restraining  trade,  whether  of 
labor  or  of  capital,4  and  that  the  penalties  prescribed  by  sec.  10 
of  the  Interstate  Commerce  Act  were  applicable  to  the  em- 
ployees of  an  interstate  railroad  who,  while  continuing  in  their 
positions  as  employees,  refused  to  handle  the  freight  received 
from  other  roads.  Such  refusal,  when  made  in  consequence 
of  a  boycott  declared  by  their  Union  against  such  road,  was  an 
unlawful  conspiracy  and  punishable  as  such  under  the  laws  of 
the  United  States,  and  also  punishable  as  a  contempt  when  their 
employing  road  was  under  an  injunction  -prohibiting  it  from 
refusing  to  exchange  interstate  traffic  with  such  boycotted 
road. 

The  Supreme  Court,  in  the  Debs  case,5  while  not  dissenting 
from  the  conclusion  of  the  circuit  court  in  holding  the  Anti- 
Trust  Act  applicable  to  a  labor  combination  interfering  with 

1  Toledo,  A.  A.  &  N.  R.  Co.  v.  Perm.  Grand  Jury,  Grosscup,  J.,  62  Fed. 
Co.,  et  al,  54  Fed.  Rep.  730  (Taft,  J.,  Rep.  828;  Ross,  J.,  62  Fed.  Rep.  834; 
in  Northern  Dist.  of  Ohio):  see  also  54  Waterhouse  v.  Comer.  55  Fed.  Rep. 
Fed.  Rep.  746;  Southern  Cal.  R.  Co.  v.  149  (S.  Dist.  of  Ga.),  1893. 
Rutherford,  62  Fed.  Rep.  796  (So.  Dist.  *  See  authorities,  supra,  and  In  re 
of  Cal.)  Debs,  64  Fed.  Rep.  724.     In  United 

2  Thomas  v.  C.  N.  O.  &  T.  P.  R.  Co.,  States  v.  Cassiday,  67  Fed.  Rep.  698, 
62  Fed.  Rep.  803,  (Taft,  J.,  in  Southern  it  was  held  that  the  provisions  of 
District  of  Ohio).  the    Anti-Trust    Law    were    broad 

3United   States   v.  Workingmen's  enough  to  reach  the  combination  or 

Amalgamated  Council,  54  Fed.  Rep.  conspiracy  that  would  interrupt  the 

994  (Dist.  of  La.);    United  States  v.  transportation  of  property   or    per- 

Eliot,  64  Fed.  Rep.  27  (West.  Dist.  of  sons  from  one  state  to  another. 

Mo.) ;  United  States  v.  Agler,  62  Fed.  5 158  TJ.  S.  564, 1.  c.  600. 
Rep.  826  (Dist.  of  Ind.);   Charge  to 


108 


BUSINESS    AND    LABOR    COMBINATIONS. 


[§  81. 


interstate  commerce,  affirmed  the  jurisdiction  of  the  federal 
court  to  grant  an  injunction  against  such  interference  on  the 
broader  ground  of  the  federal  power  over  interstate  commerce, 
which  included  the  power  to  remove  anything  put  upon  the 
highways,  natural  or  artificial,  to  obstruct  the  passage  of 
such  commerce,  and  that  this  federal  power  was  enforcible  by 
injunction. 

§  81.  Sympathetic  strikes  and  boycotts  by  interstate  em- 
ployees.—  The  right  to  strike,  that  is  to  enforce  demands  for 
the  betterment  of  their  own  conditions  by  concerted  ceasing 
from  employment  on  the  part  of  employees  directly  engaged 
in  interstate  commerce,  has  been  uniformly  affirmed,  but  has 
been  broadly  distinguished  from  the  right  to  boycott  or 
engage  in  a  so-called  sympathy  strike.  The  incidental  inter- 
ference  with  commerce  resulting  from  a  strike  when  a  body 
of  laborers  by  concerted  action  leave  their  employment  does 
not  constitute  an  unlawful  conspiracy,  nor  is  it  violative  of 
the  Interstate  Commerce  Act  or  the  Anti-trust  Act.1    Laborers 


1  Hopkins  v.  United  States.  171  U. 
S.  578,  1.  c.  593,  43  L.  Ed.  293,  296. 
As  to  the  lawfulness  of  a  strike,  per 
s. .  by  railroad  employees,  see  opin- 
ion of  Hon.  Richard  Olney,  then  At- 
torney General  of  the  United  States, 
in  the  case  of  the  Philadelphia  & 
Reading  R.  Co..  in  the  proposed 
adoption  of  a  rule  by  the  receivers 
excluding  members  of  railroad 
Brotherhoods  from  employment, 
printed  in  p.  504  of  Hearings  on 
■  Bill  No.  89.  before  the  Com- 
mittee on  the  Judiciary  of  the  58th 
Congress.  The  court  in  this  case, 
05  Fed.  Rep.  660,  declined  to  direct 
the  receivers  to  abrogate  such  a 
rule,  which  they  believed  was  ad- 
vantageous to  the  management  of 
the  property.  But  see  Taft.  J.,  in 
62  Fed.  Rep.  803,  in  the  Phelan  Case, 
that  '"the  employees  of  the  receiver 
had  the  right  to  organize  into  or 
join  a  labor  union  which  should 
take  action  as  to  the  terms  of  their 
employment  It  is  a  benefit  to  them 
and  to  the  public  that  laborers 
should  unite  for  their  common  inter- 
est  and  for  lawful   purposes.     They 


have  labor  to  sell.  If  they  stand  to- 
gether they  are  often  able,  all  of 
them,  to  command  better  prices  for 
their  labor  than  all  dealing  singly 
with  rich  emplo3'ers,  because  the 
necessities  of  the  single  employee 
may  compel  him  to  accept  any 
prices  that  are  offered.  The  accu- 
mulation of  a  fund  for  those  who 
feel  that  the  wages  offered  is  below 
the  legitimate  market  value  of  such 
labor  is  desirable.  They  have  the 
right  to  appoint  officers  who  shall 
advise  them  as  to  the  course  to  be 
taken  in  their  relations  with  their 
employers.  They  may  unite  with 
other  unions.  The  officers  they  ap- 
point, or  any  other  person  whom 
they  choose  to  listen  to,  may  advise 
them  as  to  the  proper  course  to  be 
taken,  both  in  regard  to  their  com- 
mon employment,  or  if  they  choose 
to  appoint  any  one.  may  order  them, 
on  pain  of  expulsion  from  their  union, 
peacefully  to  leave  the  employ  of 
their  employer  because  any  of  the 
terms  of  their  employment  are  un- 
satisfactory." 


§  81.]  BUSINESS    AND    LABOR    COMBINATIONS.  i()9 

directly  engaged  in  interstate  commerce  have  the  right,  singly 
or  in  concert,  to  cease  from  their  employment  whenever  they 
deem  such  action  necessary  for  the  betterment  of  their  own 
conditions,  and  it  is  immaterial,  if  their  demands  are  made  in 
good  faith  for  the  betterment  of  their  own  conditions,  that  is, 
as  to  wages  or  other  conditions  of  employment,  whether  such 
demands  are  reasonable  or  unreasonable,  provided  of  course 
that  they  act  within  the  limit  of  their  lawful  rights  and  do  not 
interfere  with  those  who  continue  in  the  employment  or  who 
are  employed  to  take  their  places;  that  is,  within  these  limits 
they  have  the  same  right  with  others  to  determine  the  reason- 
ableness of  their  own  demands  for  the  betterment  of  their  own 
conditions. 

On  the  other  hand,  a  boycott,  or  a  sympathetic  strike,  that 
is  the  ceasing  from  employment,  not  for  the  purpose  of  bet- 
tering their  own  conditions,  but  for  the  purpose  of  en  forcing  the 
employing  company  to  refuse  traffic  from  a  connecting  carrier, 
or  to  refuse  to  handle  some  boycotted  traffic,  is  unlawful. 
It  wras  said  by  Judge  Taft,1  in  speaking  of  the  attempted 
boycott  of  the  Pullman  cars,  that  it  was  immaterial  that  such 
boycott  was  unaccompanied  by  violence  or  intimidation. 

"The  purpose,  shortly  stated,  was  to  starve  the  railroad 
companies  and  the  public  into  compelling  Pullman  to  do 
something  which  they  had  no  lawful  right  to  compel  him  to 
do;  certainly  the  starvation  of  a  nation  cannot  be  the  lawful 
purpose  of  a  combination,  and  it  is  utterly  immaterial  whether 
the  purpose  be  effected  by  means  usually  lawful  or  otherwise.1' 

The  distinction  was  drawn  in  another  case2  between  a  com- 
bination of  the  employees  of  the  complainant  railway  com- 
pany which  was  seeking  an  injunction  from  the  combination 
of  the  employees  of  the  defendant  company.  The  court  said 
the  former  was  lawful,  as  the  employees  of  that  company 
were  simply  exercising  their  lawful  right  to  cease  from  em- 
ployment, that  is,  to  strike,  while  the  latter  combination  for 
the  refusal  of  the  traffic  of  the  former,  was  unlawful,  as  it 
involved  a  boycott  for  no  grievances  of  their  own,  thus 
making  a  direct  interference  with  interstate  commerce,  which 
was  the  intended  result  of  their  act,  and  not  the  incidental 

i  Thomas  v.  C,  N.  O.  &  T.  P.  R.  2  Toledo.  A.  A.  &  M.  R.  Co.  v. 
Co.,  62  Fed.  Rep.,  1.  c,  803,  supra.  Pennsylvania  Co.,  54  Fed.  Rep.   730,. 

1.  c,  738. 


110  BUSINESS    AND    LABOR    COMBINATIONS.  [§  82. 

result  of  their  exercise  of  a  lawful  right.  It  was  also  ruled 
that  a  combination  to  compel  railroad  companies  to  break 
their  contracts  with  the  owners  of  certain  cars  for  the  use 
thereof,  was  an  actionable  conspiracy  and  unlawful 

It  will  be  observed  that  in  these  cases  there  was  not  what 
is  known  as  a  simple  or  primary  boycott,  as  in  the  case  of  an 
organized  withdrawal  of  patronage  from  a  trader  for  the  pur- 
pose of  injuring  the  business,  but  it  was  a  "sympathetic 
strike  "of  the  employees  of  one  interstate  carrier  for  the 
purpose  of  forcing  a  refusal  of  business  relations  with  another 
interstate  carrier  in  violation  of  law. 

|  82.  The  law  of  conspiracy  in  interstate  commerce.— 
The  law  of  conspiracy  has  been  extensively  discussed  in  rela- 
tion to  the  combinations  of  both  labor  and  capital  in  interstate 
commerce.  As  there  are  no  common  law  offenses  in  the  United 
States,  criminal  conspiracies  are  punishable  only  as  such  when 
they  are  distinctly  declared  in  the  laws  of  the  United  States. 
There  are  certain  specific  conspiracies  made  punishable  by  the 
statute,  but  the  section  invoked  in  relation  to  interstate  com- 
merce is  what  is  known  as  the  general  conspiracy  statute,  sec- 
tion 5410  R.  S.,  U.  S.,  which  is  as  follows:1 

'•If  two  or  more  persons  conspire  either  to  commit  any  of- 
fense against  the  United  States,  or  to  defraud  the  United 
states  in  any  manner  or  for  any  purpose,  and  one  or  more  such 
parties  do  any  act  to  affect  the  object  of  the  conspiracy,  all 
the  parties  to  such  conspiracy  shall  be  liable  to  a  penalty  of 
not  more  than  ten  thousand  dollars,  or  to  an  imprisonment  of 
not  more  than  two  years,  or  to  both  fine  and  imprisonment, 
in  the  discretion  of  the  court." 

A  conspiracy  was  defined  by  the  Supreme  Court  as  a  combi- 
nation of  two  or  more  persons  by  concerted  action  to  accom- 
plish a  criminal  or  unlawful  purpose,  or  some  purpose  not  in 
itself  criminal  or  unlawful,  by  criminal  or  unlawful  means.J 
This  section  has  been  held  to  include  all  conspiracies  for  ail'ect- 

i Section  5440,  R.  S.  U.  S.,  :J  Comp.  rated   in   the   revised    statutes  and 

Stats,  p.  3676.     This  statute  was  first  amended  into  its  present  form  by^ 

enacted  in  1867  as  a  put  of  the  in-  act  oi'  May  17, 1879.    It  has  been  held* 

ternal  revenue  act,  the  penalty  there-  to  apply  to  all  crimes  under  the  laws 

in  being  not  less  than  one  thousand  of  the   United    States.    See  United 

nor  more  than  ten  thousand  dollars,  States  v.  Sanch,  7  Fed.  Rep.  713  (W. 

and  imprisonment  for  not  more  than  Dist.  of  Tenn.). 

two    years:    subsequently    incorpo-  2Pettibone  v.  United  States,  148 


g  82.]  BUSINESS    AND    LABOR    COMBINATIONS.  ill 

ino-  private  rights  and  interests  where  they  are  under  the  pro- 
tection of  the  criminal  laws  of  the  United  States  as  well 
to  the  rights  and  interests  of  the  government  itself.1  Wh 
the  offense  of  conspiracy  is  an  "infamous  crime"  within  the 
meaning  of  the  Fifth  Amendment  to  the  Constitution,  requiring 
presentment  or  indictment  of  a  grand  jury,2  it  is  yet  a  misde- 
meanor and  not  a  felony,  and  an  indictment  is  not  defective 
by  reason  of  failing  to  aver  that  the  conspiracy  was  "feloni- 
ously "  entered  into.3  As  the  offense  is  a  misdemeanor,  the 
doctrine  of  merger  has  been  held  not  applicable,  so  that  an 
acquittal  of  the  offense  of  conspiracy  is  not  a  bar  to  the  prose- 
cution for  the  crime  itself.4 

A  conviction  under  this  statute  for  conspiracy  to  obstruct 
the  United  States  mails3  was  affirmed,  and  the  conspiracy  was 
held  to  be  a  separate  offense  for  which  Congress  had  power  to 
provide  a  greater  punishment  than  for  the  offense  itself  for 
which  the  conspiracy  was  formed.6 

The  law  of  conspiracy  was  invoked  in  connection  with  the 
labor  disturbances  of  1893  and  1894,  and  a  number  of  criminal 
prosecutions  were  instituted  and  indictments  found  for  crimi- 
nal conspiracy  to  commit  offenses  of  violation  of  the  Inter- 
state Commerce  and  Anti-Trust  Acts.7  These  statutes,  as  will 
be  seen,  prohibit  and  make  criminal  interferences  with  or  com- 
binations in  restraint  of  trade  in  interstate  commerce. 

U.  S.  197,  37  L.  Ed.  419,  citing  Shaw,  where  held  that  a  conspiracy  at  com- 
C.  J.,  in  Commonwealth  v.  Hunt,  4  mon  law  for  alleged  boycott  in  the 
Metcalf,  111.  In  this  case  the  court  District  of  Columbia  was  not  triable 
quashed  an  indictment  whereunder  summarily  before  a  police  magis- 
a  conviction  had  been  had  for  con-  trate,  but  that  jury  trial  was  de- 
spiring  to  obstruct  the  due  adminis-  mandable  as  a  right, 
tration  of  justice  by  intimidation  3Bannon  v.  United  States,  156  U. 
and  violence  in  a  strike,  on  the  S.  464,  39  L.  Ed.  494  (1895). 
ground  that  the  indictment  failed  4  Berkowitz  v.  United  States,  Third 
to  show  that  the  defendants  had  no-  Circuit,  35  C.  C.  A.  379,  93  Fed.  Rep. 
tice  of  the  pendency  of  proceedings  452. 

irfWhe  United   States   courts  which  5  Sec.  3995  R.  S.  of  U.S.,   3  Com  p. 

they  were  charged  with  combining  Stat,  2716." 

,  to  obstruct,  6Clune  v.  United  States,  159  U.  S. 

i  United    States   v.  Sauch.  7   Fed.  590,  40  L.  Ed.  269  (1895). 

Rep.  715,  supra.  "See  Charge  to  Grand  Jury.  Gross- 

2  Makin  v.  United  States,  117  U.  S.  cup,  J.,  62  Fed.  Rep.  828,  and  Ross,  J., 

348,  29  L.  Ed.  909  (1886);  Callan  v.  62  Fed.  Rep.  838;  United  States  v. 

Wilson,  127  U.  S.  540,  32  L.  Ed.  223,  Cassiday,   67   Fed.    Rep.    698.     In  re 

Debs,  63  Fed.  Rep.  436. 


112  BUSINESS    AND    LABOR    COMBINATIONS.  [§  S2- 

The  subject  was  exhaustively  discussed  also  in  the  injunction 
and  contempt  proceedings  growing  out  of  the  same  disturb- 
ances. The  law  of  conspiracy  has  been  applied  in  determining 
the  responsibility  of  persons  not  parties  to  the  record  for  con- 
tempt of  court  in  violation  of  an  injunction  under  the  rule, 
that  when  a  conspiracy  is  shown,  each  conspirator  is  responsi- 
ble for  the  acts  of  his  co-conspirators.1  It  was  held  by  Taft, 
J.,  in  the  Toledo,  A.  A.  A:  X.  W.  Railroad  Case,  supra,' that 
threatening  action  to  withhold  labor  from  another,  for  the 
purpose  of  inducing,  procuring  or  compelling  the  other  to 
commit  an  unlawful  act  was  itself  a  criminal  or  unlawful  act. 
As  the  Interstate  Commerce  Act,  section  3,  prohibited  the  car- 
rier from  refusing  to  interchange  traffic  with  another  carrier, 
the  threatening  to  withhold  labor  for  the  purpose  of  compell- 
ing him  to  refuse  such  traffic  was  itself  a  criminal  or  unlawful 
act.  The  enforcement  of  a  rule  of  the  Brotherhood  of  Engi- 
neers, requiring  its  members  to  refuse  to  handle  property  of  a 
railroad  system  with  which  the  brotherhood  was  at  issue,  was 
held  to  constitute  a  criminal  conspiracy  under  the  laws  of  the 
United  States,  and  that  the  officers  and  all  members  of  the 
brotherhood  engaged  in  enforcing  the  rule  were  equally  guilty 
and  subject  to  the  penalties  of  the  section. 

The  courts  have  allowed  proof  of  the  character  and  pur- 
poses of  a  conspiracy  to  be  made  by  official  proclamation, 
newspapers  and  reports,  and  other  matters  of  public  current 
history.2 

It  was  also  held  in  these  cases  that  the  parties  to  a  criminal 
conspiracy  are  liable  for  any  actual  loss  to  private  parties  in- 
flicted in  pursuance  of  their  conspiracy.  The  gist  of  any  such 
action,  however,  is  not,  as  in  criminal  cases,  in  the  combination, 
but  in  the  fact  of  injury,  and  no  civil  liability  arises  unless 
injury  is  done.  Ordinarily  the  only  difference  between  the 
civil  liability  for  an  injury  from  one  person  and  from  the  same 
acts  done  by  a  conspiracy,  is  in  the  greater  probability  of  irf- 
jurv  in  the  latter  case.  The  threat  of  such  injury  from  which 
irreparable  injury  would  flow  warranted  the  relief  by  injunc- 
tion to  prevent  the  injur}7. 

i  In  re  Bessette,  111  Fed.  Rep.  417  gated  Ass'n,  54  Fed.  Rep.  994;  Clune 
(I,,  i.,  v.  U.  S.,  159  U.  S.,  590,  40  L.  Ed.  269- 

2  In  re  Debs,  supra;  U.  S.  v.  Amal-     (1895). 


§  83.]  BUSINESS    AND    LABOR    COMBINATIONS.  113 

It  should  be  observed  however  that  a  conspiracy  may  con- 
sist in  a  combination  to  accomplish  a  lawful  end  by  means 
which  are  unlawful,  though  not  criminal  in  the  sense  that 
they  are  made  punishable  by  statute.  All  criminal  acts  are 
unlawful,  but  unlawful  acts  are  not  all  criminal.  As  a  con- 
certed, peaceful  cessation  from  labor  is  lawful,  there  can  be  no 
basis  of  a  charge  of  conspiracy  in  such  cases  unless  unlawful 
means  are  employed  in  furtherance  of  the  purposes  of  the 
strike.  There  can  be  no  conspiracy  in  the  exercise  of  a  lawful 
right  by  lawful  means,  and  it  is  immaterial  in  such  a  case  what 
may  be  the  motive  in  this  exercise  of  a  lawful  right.  As  men 
may  leave  their  employment  at  will,  when  not  under  contract, 
so  the  employer  may  exercise  his  right  of  terminating  the  re- 
lation, where  there  is  no  contract,  whatever  the  motive,  and 
no  charge  of  conspiracy  can  be  based  upon  such  exercise  of  a 
lawful  right.1 

§83.  Distinguished  from  common  law  conspiracy. —  Con- 
spiracy under  the  laws  of  the  United  States  as  applied  in  inter- 
state commerce  cases  is  to  be  distinguished  from  common  law 
conspiracy,  which  is  in  force  in  some  of  the  states.  Thus,  in 
England  it  was  found  necessary  to  legalize  strikes  of  working- 
men  by  the  enactment  of  the  "  Conspiracy  and  Protection  of 
Property  Act  "of  18T5.2  The  law  of  the  United  States  re- 
quires an  act  to  be  done  affecting  the  object  of  the  conspiracy, 
that  is,  an  overt  act,  and  the  conspiracy  must  relate  to  an  of- 
fense against  the  United  States  or  the  defrauding  the  United 
States.  Not  only  obstruction  of  the  mails,  but  any  direct  and 
intended  interference  with  interstate  commerce,  if  committed 
by  one  person,  is  an  offense  against  the  United  States,  and  pun- 

1  Boyer  v.  Western  Union  Tel.  Co.,     guilty  of  a  conspiracy  for  which  a 
124  Fed.  Rep.  246  (E.  Dist.  of  Mo.).  punishment  is   awarded   by   act   of 

2  38,  39  Vic.  c.  86.  providing  that     parliament. 

an  agreement  or  combination  by  two  It  was  held  in  Regina  v.  Bauld,  13 

or  more  persons  to  do  or  to  procure  Cox  C.  G,  282  (1876),  that  under  this 

to  be  done  any  act  in  contemplation  act  neither   master  nor  men  had  a 

or  furtherance  of  a  trade  dispute  be-  rjght  to  take  an}'  proceedings  to  com- 

tween   employers  and  workingmen  pel  other  masters  or  men  to  adopt 

shallnotbeindictableasaconspiracy,  their    views  on  any  trade  question. 

for  such  act,  if  committed  by  one  per-  With  this  section  were  also  enacted 

son.   would   not   be  punishable  as  a  certaiu  limitations  and   restrictions 

crime.     Nothing  in  this  section  shall  upon  the  "  besetting  "  by    picketing 

exempt  from  punishment  any  person  and  solicitation  in  case  of  strikes. 


11-4  BUSINESS    AND    LABOR    COMBINATIONS.  [§   ^^t- 

ishable  as  such.1  The  law  of  conspiracy,  therefore,  in  such  a 
case  is  not  the  basis  of  the  criminal  action,  as  the  offense  is 
not  made  by  the  combination,  but  by  the  illegality  of  the  end 
proposed,  whether  the  means  employed  are  lawful  or  unlawful. 
The  enactment  of  the  English  statute  by  Congress  would  have 
no  material  bearing  upon  the  law  of  conspiracy  as  now  applied 
in  interstate  commerce  cases.  As  a  concerted  peaceable  cessa- 
tion from  labor  is  lawful,  in  interstate  employment  as  in  any 
other,  there  is  in  such  cases  no  illegality  in  the  object  sought, 
and  no  statute  is  required  to  legalize  such  action. 

The  English  statute  only  applies  to  criminal  prosecutions 
for  conspiracies,  and  combinations  for  unlawful,  though  not 
criminal  ends,  as  the  destruction  or  injury  of  another's  prop- 
erty or  business,  without  justifiable  reason,  are  still  unlawful 
in  England,  and  still  constitute  the  basis  of  civil  liability. 

§  84-.  Interstate  commerce  in  relation  to  employees  therein. 
There  has  been  some  difference  of  judicial  opinion  as  to  the 
illegality  of  boycotts  when  unattended  with  violence,  intimi- 
dation  or  other  illegal  methods,  that  is,  whether,  in  the  ab- 
sence of  statute,  the  act  which  one  might  lawfully  do,  as  the 
witholding  of  patronage  from  another,  is  made  illegal  by  com- 
binations with  others  to  do  the  same  act.  Thus  it  has  been  said 
that  malice  or  the  specific  intent  to  injure  the  party  may  con- 
stitute a  combination  an  illegal  conspiracy,  while  other  author- 
ities have  based  the  legal  right  to  relief  upon  the  greater  prob- 
ability of  injury  in  the  case  of  a  combination,  and  it  has  been 
denied  that  private  malice  can  be  an  ingredient  in  making  a 
civil  action,2  except  in  certain  recognized  exceptions  where  mal- 
ice is  essential,  as  in  malicious  prosecution. 

!Sec.    10  of  Interstate  Commerce  Actions,  American.  Bar  Association 

Act,  infra.  of  1808. 

-'See    prevailing    and    dissenting  The  weight  of  American  authority 

opinions  in  Hopkins  v.  Oxley  Stave  is  condemnatory  of  "boycotts,  '  that 

Co.,  28  C.  C.  A.  99,  and  83  Fed.  Rep.  is  of  organized  efforts  to  destroy  an- 

912,   and  Vegelhan    v.   Hunter,    107  other's  business.     The  cases  are  usu- 

Mass.  92  (1890);  Taft,  J.,  on  the  state  ally  complicated,  however,  with  clis- 

bench  of  Ohio,  in  Moores   v.  Brick-  tinctly  illegal  '-means."     See  State 

Union,  23  Weekly  Law  Bui.  v.  Glidden,  55  Conn.  46  (1887):  Crump 

18,  and  7  Railway  &  Corp.  Law  Jour-  v.  Commonwealth,  84  Va.  927  (1889); 

nal,  108  (1890);   Allen  v.  Flood.  67  L.  State  v.   Stewart.  59  Vt.  273  (1887), 

J.  Rep.     Paper  of  L.  C.  Krauthoff  on  State  v.  Donaldson,  32  N.  J.  Law,  151, 

Malice    as    an    Ingredient  of   Civil  where  indictments  for  conspiracy  in 


§   S3.]  BUSINESS    AND    LABOR    COMBINATIONS.  115 

This  distinction,  however,  is  academic  rather  that  practical 
in  its  relations  to  interstate  commerce.  There  is  an  obvious 
distinction  between  the  relations  of  quasi  public  corporations, 
such  as  carriers  to  their  employees, —  which  is  emphasized  by 
their  connection  with  interstate  commerce,  and  thus  a  matter 
of  direct  federal  concern, —  and  that  of  private  employers  to 
their  einploj'ees,  which  grows  out  of  the  peculiar  relations  of 
such  carriers  to  the  public.  The  former  cannot  "lock  out"" 
their  employees  by  suspending  business  for  a  time  because  of 
unsatisfactory  labor  conditions  which  prevent  them  from  doing 
business  profitably,  and  in  such  matter  they  have  not  the 
rights  which  rmtv  be  exercised  by  private  manufacturers.  The 
cars  must  continue  to  move  and  traffic  must  continue  to  flow. 
Any  interference  with  the  traffic,  therefore,  except  that  which 
is  the  incidental  result  of  the  exercise  of  a  lawful  right,  as  the 
ceasing  from  employment  for  the  betterment  of  one's  own  con- 
ditions, is  unlawful. 

This  principle  does  not  require  the  existence  of  through  rout- 
ing arrangements  between  carriers  but  rests  on  the  broad  dec- 
laration of  national  policy  which  requires  the  interchange  of 
traffic,  whether  through  routing  under  contractual  arrange- 
ments exists,  or  not. 

This  immunity  of  interstate  commerce  from  direct  interfer- 
ence not  justified  by  the  lawful  exercise  of  rights,  is  not  lim- 
ited to  railroads  or  other  interstate  carriers,  but  is  applicable 
to  any  parties  engaged  in  transporting  or  handling  interstate 
traffic,  such  as  teamsters,  draymen,  transfer  employees,  or 
others,  that  is,  wherever  the  services  are  essential  to  the  con- 
tinued moving  of  interstate  traffic  from  the  point  of  shipment 
by  the  consignor  in  one  state  to  the  delivery  to  the  consignee 
in  another  state.1  Thus,  combinations  in  restraint  of  interstate 
commerce  are  obnoxious  to  the  federal  law,  though  the  sub- 
jects  of  such  contracts  are  within  the  jurisdiction  of  the  state.2 

boycott  cases  were  sustained.     See  v.    Clothing    Cutters    &    Trimmers 

also  Casey  v.  Central  Typo.  Union.  Assembly,  77  Md.  396. 
45  Fed.  Rep.  135;  Old  Dominion  S.  S.        i  See  Rhodes  v.  Iowa.  170  U.  S.  412, 

Co.  v.  MoKenna.  30  Fed.  Rep.  49  (So.  43  L.  Ed.  1088. 

Dist.  of  Ohio);  Carew  v.  Rutherford,        2Addyston   Pipe   &    Steel   Co.    v. 

106  Mass.  1  (So.  D;st.  of  N.  Y.);  Wal-  United  States,  175  U  S.  211, 1.  c.  246, 

ker   v.   Cronin,  107  Mass.   555;  Dore-  and  44  L.  Ed.  136:  United  States  v. 

mus  v.  Hennesy,  176  111.  60S;  Lucke  Swift,  122  Fed.  Rep.  529  (N.  Dist  of 

111.). 


110  BUSINESS    AND    LABOR    COMBINATIONS.  [§  85. 

A  boycott  involving  any  form  of  interference  with  interstate 
traffic  at  any  stage  would  be  unlawful.1  Thus,  a  combination 
in  New  Orleans  to  enforce  the  employment  of  none  but  union 
men  in  all  departments  of  labor  became  a  combination  in  re- 
straint of  interstate  commerce  within  the  meaning  of  the  stat- 
ute when,  in  order  to  gain  its  ends,  it  sought  to  bring  about 
a  discontinuance  of  labor  in  all  departments  of  business  includ- 
ing the  transportation  of  goods  from  state  to  state  and  from 
foreign  nations.2 

s";.  "  Picketing  "  and  "  Soliciting  "  in  interstate  com- 
merce.—  The  same  distinction  is  to  be  applied  and  the  same  dis- 
tinction recognized  in  determining  the  rights  of  striking  em- 
ployees in  picketing  the  approaches  to  stations  or  besetting,  by 
soliciting  or  other\vise,their  fellow-employees  who  do  not  strike, 
or  those  who  are  employed  to  take  their  places.  It  is  not  within 
the  scope  of  this  work  to  consider  what  is  the  extent  or  what 
are  the  limitations  of  the  right  to  picket  or  solicit  in  private 
emplovment.  Such  questions  are  frequently  presented  to  the 
state  courts,  and  also  in  the  federal  courts  in  cases  where  their 
jurisdiction  is  invoked  on  grounds  of  diverse  citizenship,  and 
no  distinctly  federal  question  is  involved.  The  public  interest, 
which  is  not  considered  paramount  in  ordinary  trade  disputes,, 
that  is,  the  public  convenience  and  even  the  public  necessities, 
are  often  not  given  the  weight  that  they  should  have.  But 
wherever  interstate  or  foreign  commerce  is  involved,  this  pub- 
lic interest  is  made  paramount  by  the  laws  of  the  United 
States.  All  classes  of  the  community,  workingmen  as  well  as 
capitalists,  are  interested  in  the  prompt  transmission  of  the 
mails  and  the  uninterrupted  carriage  of  persons  and  freight. 
Any  form  of  interference,  therefore,  with  the  free  move- 
ment of  interstate  traffic,  whether  by  picketing  or  soliciting, 
or  any  form  of  obstruction,  would  be  a  direct  interference 
with  interstate  commerce  and  unlawful  as  such,  when  it  is  not 
the  incidental  result  of  the  exercise  of  a  lawful  right,  as  the 
erted  cessation  from  employment.  It  is  true  that  a  con- 
certed  cessation  from  employment,  as  in  strikes,  results  also  in 
an   interference    with  interstate  commerce,  and   may  involve 

i  See    Knu'lson    v.    Benn  (Dist.  of     Amalgamated  Council  of   New  Or- 
Minn.),  133  Fed.  Rep.  <>:;i'>.  leans  (Eastern  Dist.  of  La.),  54  Fed. 

zrjnited   States  v.   Workingmen's    Rep.  994  (1893). 


§  86.]  BUSINESS    AND    LABOR    COMBINATIONS.  117 

widespread  public  inconvenience  and  suffering,  but  that  is  the 
incidental  result  of  the  exercise  of  a  lawful  right.  After  this 
right  is  exercised,  the  interference  thereafter  resulting  from 
boycotting  any  interstate  traffic,  or  soliciting  or  besetting  em- 
ployees in  such  commerce  to  leave  their  employment,  is  not 
incidental,  but  is  caused  by  a  direct  interference  with  inter- 
state commerce.  This  distinction  is  not  based  upon  an\r  favor 
to  the  carrier,  or  for  any  abridgment  of  the  rights  of  employ- 
ees, but  because  the  public  interest,  which  concerns  all  citizens 
alike,  is  paramount.1 

§  86.  The  relation  of  interstate  railroad  employees  is  that 
of  free  contract. —  The  relation  of  interstate  carriers  to  their 
employees  is  that  of  free  contract,  terminable  by  either  party, 
subject  to  the  terms  of  the  contract.  This  relation,  therefore, 
is  not  analogous  to  that  of  seamen  in  the  maritime  service, 
who  to  a  certain  extent  surrender  their  liberty  in  their  em- 
ployment and  are  punishable  for  an  unlawful  desertion.2  It 
was  said  in  Arthur  v.  Oakes:i  that,  in  the  absence  of  legisla- 
tion to  the  contrary,  the  right  of  one  in  the  service  of  a  quasi*- 
public  corporation  to  withdraw  himself  at  such  time  as  he  sees 
fit,  and  the  right  of  the  managers  of  the  corporation  to  dis- 
charge an  emplo}ree  whenever  they  see  fit,  must  be  deemed  so 
far  absolute  that  no  court  could  compel  the  continuance  of  the 
emplo}rment  on  the  demand  of  either  party. 

It  has  been  suggested  that  there  are  limits  upon  the  right  of 
the  employees  of  a  railroad  to  abandon  their  employment; 
that  is,  that  it  should  not  be  exercised  at  a  time  or  under  cir- 
cumstances indicating  a  purpose  to  obstruct  commerce  or  to 

1  United  States  v.  Workingmen's  intelligent   responsibility   for    their 
Amalgamated        Council.       supra;  acts  which  is  accredited  to  ordinary 
Knudson    v.    Benn.    supra    (Minn.);  adults,  and  as   needing  the   protec- 
Union  Pacific  R.  Co.  v.  Ruef  (Dist.  of  tion  of  the  law,  in  the  same  sense  in   I 
Neb.),  120  Fed.  Rep.  102.  which    minors   and   wards    are    en- 

2  The  supreme  court  said,  Robert-  titled  to  the  protection  of  their 
son  v.  Baldwin,  165  U.  S.  1.  c,  287,  41  L.  parents  and  guardians."  Harlan.  J., 
Ed.  719  (1897),  in  sustaining  the  con-  dissented,  saying  that  the"  holding 
stitutionality  of  sections  4598  and  of  any  person  in  custody  for  the 
4599,  R.  S.  U.  S.,  3  Comp.  Stat.  p.  purpose  of  compelling  him  to  render 
3115,  authorizing  apprehension  of  personal  service  in  a  private  busi- 
deserting  seamen,  that  "seamen  ness  was  "involuntary  servitude," 
are    treated    by    congress,    as   well  prohibited  by  the  constitution. 

as  by  the  parliament  of  Great  Bri-  :311  C.  C.  A.  209,  and  63  Fed.  Rep. 
tain,   as  deficient   in    that   full   and     310. 


US  BUSINESS    AND    LABOR    COMBINATIONS.  [§86. 

prevent  its  operation,  rather  than  to  exercise  the  lawful  right 
of  withdrawal  from  employment.1  Thus,  the  Supreme  Court, 
in  affirming  the  jurisdiction  of  the  circuit  court  in  punishing 
an  engineer  for  contempt  of  an  injunction,-  said  that  it  was 
not  necessary  to  decide  whether  an  engineer  may  suddenly 
and  without  notice  quit  the  service  of  a  railroad  company  at 
an  intermediate  station  or  between  stations,  though  cases  may 
be  imagined  where  the  sudden  abandonment  of  a  trainload  of 
passengers  might  imperil  their  safety  or  even  their  lives,  as  in 
this  case  the  court  below  had  found  from  the  testimony  that 
the  petitioner  did  not  quit  in  good  faith,  but  intended  to  con- 
tinue in  the  company's  service,  and  that  his  conduct  was  a 
device  to  avoid  obeying  the  order  of  the  court. 

This  subject  of  the  exercise  of  the  right  to  leave  employment 
was  discussed  by  the  Circuit  Court  of  Appeals  for  the  seventh 
circuit  in  an  opinion  by  Justice  Harlan  3  in  a  case  wherein  the 
court  below  had  made  an  order  enjoining  employees  from  so 
quitting  the  service  of  the  receivers,  "with  or  without  notice,  as 
to  cripple  the  property  or  prevent  the  operation  of  the  railroad." 

The  court  said  that  the  latter  words,  "as  to  cripple  the  prop- 
erty, "  etc.,  should  be  stricken  out.  The  fact  that  employees  of 
railroads  may  quit  under  circumstances  which  would  show  bad 
faith  or  reckless  disregard  of  their  contracts,  or  the  convenience 
or  interests  of  both  the  employer  and  the  public,  did  not  jus- 
tify a  departure  from  the  general  rule  that  equity  would  not  re- 
quire employees  against  their  will  to  remain  in  the  personal  ser- 
vice of  the  employer.  The  court  ruled,  however,  that  the  in- 
junction properly  prohibited  the  employees  from  combining 

>  While  there  is  no  federal  statute  place   than   the   regular    scheduled 

on   the  subject,   there    are    special  end  of  the    road.     Illinois   Revised 

statutory  provisions  in  the  several  Statutes,  109,  111  and  111:  Maine  R. 

states,  Maine,  Pennsylvania,  Illinois,  S.  1903,   p.  927,  sec.  7;  Pennsylvania 

New  Jersey.  Kansas,  Delaware  and  R.  S.  1894,  p.  1328,  sec.  (303:  New  Jer- 

Mis-issippi,  the  purpose  of  which  is  sey  R.  S.  1895,  p.  2696,  sec.  243;  Kan- 

to   prevent   such   sudden    abandon-  sas  R.  S.  1901,  sec.  2374;  Delaware  R. 

inent  of  employment  as  should  en-  S.,  p.  928;  Mississippi  R.  S.  1892,  sec. 

danger  life  or  seriously  obstruct  the  1270.     See  also  Report  of  Industrial 

actual  physical  use  of  the  railroad.  Commission,   vol.  5,   p.  132;  vol.  17, 

In  several  of  the  states  the  provision  p.  601. 

is  especially  that  no  locomotive  en-        2In  re  Lennon,  166  U.  S.  548  (1897), 

gineer.  and  in  some  states  conduct-  41  L.  Ed.  1110. 
ors  and  trainmen,  shall  abandon  the        3  Arthur  v.  Oakes,  supra. 
locomotive  and  train  at  any  other 


§  87.]  BUSINESS    AND    LABOR    COMBINATIONS.  119 

and  conspiring  to  quit  with  or  without  notice  the  service  of  the 
receivers  with  the  object  and  intent  of  crippling  the  property 
in  their  custody  or  embarrassing  the  operation  of  the  railroad. 
This  case  was  not  based  upon  either  the  Interstate  Commerce 
Act  or  the  Anti-Trust  Act,  but,  as  the  court  said,  upon  the 
general  principles  which  controlled  the  exercise  of  jurisdict- 
ion by  courts  of  equity. 
'  §  87.  The  right  of  labor  organization  includes  the  right 
of  representatation. —  The  right  or  organization  into  unions  or 
brotherhoods  by  the  employees  of  interstate  railroads  is  re- 
cognized both  by  the  federal  statutes  l  and  by  the  courts,  and 
this  right  carries  with  it  the  recognition  of  the  right  of 
"collective  bargaining"  by  employees  through  their  organ- 
izations in  the  betterment  of  their  own  conditions  of 
service.  Incidental  to  this  right  thus  recognized  is  the  right 
of  representation  of  employees  by  their  own  officials  se- 
lected by  them  in  the  presentation  of  their  demands  for  the 
betterment  of  their  conditions  of  service.  A  distinction  is 
properly  made  between  such  represenatives  of  employees 
who  seek  the  redress  of  the  grievances  of  those  repre- 
sented by  them,  and  the  status  of  those  not  connected  with 
employees  who  seek  to  induce  them  to  break  their  contracts  of 
employment  for  other  purposes  than  their  own  betterment.2 
This  right  of  representation  was  directly  involved  in  the  re- 
cent case  decided  by  Judge  Adams  in  the  eastern  district 
of  Missouri.3  In  this  case  an  injunction  was  sought  by  the 
railroad  company  against  the  officials  of  the  railroad  brother- 
hoods of  trainmen  and  firemen  enjoining  them  from  calling 
a  strike  on  an  interstate  railroad  on  the  ground,  among  others, 
that  these  officials  were  not  employees  of  the  railroad,  and 
that  their  action  in  calling  a  strike  would  be  a  direct  interfer- 
ence with  interstate  commerce.  The  court  found  from  the 
evidence  that  there  was  an  existing  dispute  about  the  con- 
ditions of  employment  and  that  the  officers  of  the  brotherhood 
had  been  directed  by  the  employees  on  the  road  to  call  a 
strike  and  therefore  held  that  the  employees  had  a  ri^ht  to 
act  by  their  representatives,  and  the   injunction  was  dissolved. 

1  See  National  statute  of  arbitrat-  charge  of  Judge  Grosscup  to  grand 
ion.  supra.  jury.  62  Fed.  Rep.  828. 

2  Thomas  v.  C,  N.  O.  &  T.  P.  R.  Co.,  3  Wabash  R.  R.  Co.  v.  Hannahan  et 
62   Fed.   Rep.    803,    supra;  see    also  al,  12l  Fed.  Rep.  563. 


120  BUSINESS    AND    LABOR    COMBINATIONS.  [§  S3. 

§  ss.  Injunction^  in  interstate  commerce.— In  a  progres- 
sive industrial  civilization  preventive  remedies  are  frequently 
the  onlv  adequate  remedies  when  business  or  property  rights 
are  invaded,  particularly  when  there  is  any  question  as  to  the 
pecuniary  responsibility  of  the  parties  charged  with  the  wrong. 
This  is  the  case  with  labor  disturbances  which  involve  a  direct 
interruption  of  business  and  damages,  which  are  in  the  nature 
of  things  irreparable,  because  they  cannot  be  accurately  ascer- 
tained, oven  if  the  defendants  were  responsible.*  Where  the 
public  interest  intervenes,  as  in  the  case  of  interstate  com- 
merce, where  the  traffic  must  continue  to  be  moved  and  the 
ears  continue  to  run.  some  form  of  preventive  relief,  usually 
that  of  injunction,  is  ordinarily  the  only  available  remedy. 

The  influence  upon  our  jurisprudence  of  the  ancient  historic 
jealousy  of  courts  of  chancery1  is  illustrated  in  the  contention 
that  where  the  trespasses  or  other  wrongs  to  business  or  other 
property  involve  a  violation  of  criminal  law,  there  is  no  juris- 
diction in  equity  to  enjoin  the  commission  of  the  acts.'  This 
contention  is  obviously  unsound.  The  injunction  restrains  not 
the  crime,  but  the  irreparable  injury  to  property.  The  ques- 
tion was  definitely  settled  by  the  Supreme  Court  in  the  Debs 
case,-  where  the  Court  held  that  while  a  chancellor  had  no 
criminal  jurisdiction,  and  something  more  than  the  threatened 
commission  of  an  offense  against  the  laws  of  the  land  was 
necessary  to  call  into  exercise  the  injunctive  power  of  the 
court,  that  when  interference  with  property,  actual  or  threat- 
ened, appeared,  the  jurisdiction  of  the  court  of  equity  arises, 
and  is  not  destroyed  by  the  fact  that  the  interferences  are 
accompanied  by  or  are  themselves  a  violation  of  the  criminal 
law.     The  jurisdiction  of  the  civil  court  is  invoked,  not  to 

iThe  use  of  preventive  remedies  addition  to  or   in   substitution    for 

seems  more  firmly  established  in  the  such  injunction. 

English  courts  than  in  our  own.  The  On    the    general    subject    of    the 

distinction   between  the  powers  of  modern  use  of  injunctions,  see  F.J. 

courts  of  law  and  courts  of  equity  Stimson  in  Political  Science  Quar- 

has  there  now  only  historical  inter-  teriy.    June,    1895;    Charles    Claflin 

est.     All  divisions  of  the  Supreme  Allen  at  American  Bar  Association, 

Court  of  Judicature   have   jurisdic-  1894;  Hon.  Wm.  H.  Taft,  then  cir- 

tion  to  grant   injunctions  when   it  cuit  judge,  in  defense  of  the  federal 

shall  appear  to  the  court  to  be  just  judiciary,    American    Bar    Associa- 

or  convenient   that   such    shall    be  tion,  1895. 

made  (sub.  sec.  8,  sec.  25,  Judicature  - 158  U.  S.  1.  c.  p.  593,  39  L.  Ed.  1108. 

Act,  1873),  and  to  award  damages  in  supra. 


§  88.]  BUSINESS    AND    LABOR    COMBINATIONS.  121 

enforce  the  criminal  law  and  to  punish  the  wrong-doer,  but  to 
compensate  the  injured  party  for  the  damages  which  he  or 
they  have  suffered,  and  it  is  no  defense  to  the  civil  action  that 
the  same  act  by  defendant  exposes  him  also  to  indictment  and 
punishment  in  a  court  of  criminal  jurisdiction.  In  this  case 
the  injunction  was  sought  by  the  government  itself,  and  it  is 
obvious  that  the  right  of  any  other  litigant  to  preventive  relief 
in  the  case  of  threatened  irreparable  injury  to  property  by 
criminal  trespasses  would  be  also  available. 

The  same  remedy  of  injunction  was  invoked  by  the  govern- 
ment against  the  railroads  of  the  country  in  the  proceedings 
under  the  Anti-Trust  Act,1  and  also  against  combinations  of 
capitalists  under  the  same  statute.2  In  a  very  recent  opinion 
in  the  Beef*Trust  case,3  the  Supreme  Court  affirmed  the  decree 
of  the  circuit  court  of  Illinois  enjoining  the  defendants  in  a 
suit  by  the  United  States  against  certain  specific  acts  in 
restraint  of  competition  in  interstate  commerce. 

In  this  latter  case  however  the  Court  directed  a  modifica- 
tion of  the  injunction  by  striking  out  the  general  words  "  or 
by  any  other  method  or  device,  the  purpose  and  effect  of 
which  is  to  restrain  commerce  as  aforesaid,'1  saying  that  the 
defendants  ought  to  be  informed  as  accurately  as  the  case  per- 
mitted what  they  were,  forbidden  to  do.  The  court  said  that 
while  it  was  bound  to  enforce  the  act,  it  was  also  bound  by  the 
first  principles  of  justice  not  to  sanction  a  decree  so  vague  as 
to  put  the  whole  conduct  of  defendants'  business  at  the  peril 
of  a  summons  for  contempt,  and  that  it  could  not  issue  a  gen- 
eral injunction  against  all  possible  breaches  of  the  law. 

There  has  been  considerable  discussion  in  the  courts  and 
also  in  the  committees  of  Congress  as  to  the  scope  of  injunc- 
tions rendered  in  trade  disputes.  Thus,  in  the  Debs  case  the 
injunction  order  included  all  persons  whatsoever,  not  named 
therein,  from  and  after  the  time  when  they  shall  severally 
have  notice  of  such  order.  The  question  as  to  the  scope  of 
the  order  was  not  definitely  determined,  as  the  order  was 
issued  and  served  upon  the  defendant,  so  that  this  feature  of 

1  See   United  States  v.  Trans-Mis-    ities    Co.,   supra;    Swift   v.    United 
souri   Freight   Association;    United    States  (Jan.  BO,  1905). 
States  v.  Joint    Traffic  Association,        -  See  Anti-Trust  Law,  infra. 
and  United  Stat  esv.  Northern  Secur-        3  Swift  v.  United  States,  196  U.  S. 

375. 


1-22 


BUSINESS    AND    LABOR    COMBINATIONS. 


[§88. 


the  order  was  not  discussed  in  the  Supreme  Court,  although 
the  power  of  the  court  under  such  an  order  was  sustained  in 
the  circuit  court.1 

Persons  who  are  in  privity  with  the  defendant  as  agents, 
servants  or  employees  are  to  be  distinguished  from  independent 
tort-feasors  who  are  not  shown  to  be  in  any  wise  allied  with 
the  defendants.-'  The  Supreme  Court  sustained  the  jurisdic- 
tion of  the  Circuit  Court  in  the  case  of  In  re  Lennon,3  saying 
that  it  was  sufficient  that  he  had  actual  notice,  although  he 
was  not  a  party  to  the  suit,  nor  served  with  process;  in  that 
case  however  Lennon  was  an  employe  of  the  defendant, 
which  had  been  enjoined  from  refusing  to  interchange  traffic 
with  the  complainant,  and  he  was  shown,  with  full  knowledge 
of  the  injunction,  to  have  refused  to  obey  it. 

Other  questions  have  been  raised  as  to  the  proper  scope  of 
injunctions  in  trade  disputes,  particularly  with  reference  to 
the  conduct  of  striking  employees,  but  these  have  been  in 
cases,  where  the  jurisdiction  of  the  federal  courts  was  based  on 
diverse  citizenship  as  in  mining  and  other  local  industries 
where  interstate  commerce  was  in  no  wise  involved.4 


i  Toledo,  etc.  R.  Co.  v.  Perm.  R.  Co., 
54  Fed.  Rep.  746;  In  re  Debs,  64  Fed. 
Rep.  704.  As  to  the  jurisdiction  of  the 
courts  in  issuing  injunctions  under 
the  Interstate  Commerce  Act,  see 
sec.  8,  infra;  and  as  to  the  Anti- 
Trust  Act  and  the  procedure  there- 
under, see  Anti-Trust  Act,  infra, 
£314. 

2  In  re  Reese,  98  Fed.  Rep.  984,  47 
\.  -7.  and  107  Fed.  Rep.  942. 

3 166  U.  S.  548,  41  L.  Ed.  1110,  supra. 

4  See  S  80.  supra;  see  also  discus- 
sion before  the  Judiciary  Commit- 
tee of  the  House  of  Representatives 
of  the  58th  Congress.  The  agitation 
over  the  increased  use  of  injunc- 
tions in  trade  disputes  and  the  ap- 
plication  of  the  law  of  conspiracy 
in  the  trial  of  contempts  has  been 
extensively  discussed  in  congress  in 
connection  with  the  so-called  Anti- 
( '  »nspiracyand  Anti-Injunction  Bill, 
to  limit  the  meaning  of  the  word 
*•  conspiracy  "  in  the  use  of  restrain- 


ing words  and  orders  in  certain 
cases,  which  has  been  introduced  in 
several  successive  congresses,  but 
has  not  been  enacted  into  law.  The 
proposed  act  is  as  follows: 

Be  it  enacted  by  the  Senate  and 
House  of  Representatives  of  the 
United  States  of  America  in  Con- 
gress assembled,  That  no  agreement, 
combination  or  contract  by  or  be- 
tween two  or  more  persons  to  do  or 
procure  to  be  done,  or  not  to  do  or 
procure  not  to  be  done,  any  act  in 
contemplation  or  furtherance  of  any 
trade  dispute  between  employers 
and  employees  in  the  District  of 
Columbia  or  in  any  territory  of  the 
United  States,  or  between  employers 
and  employees  who  may  be  engaged 
in  trade  or  commerce  between  the 
several  states,  or  between  any  terri- 
tory and  another,  or  between  any 
territory  or  territories  and  any  state 
or  states  or  the  District  of  Columbia, 
or  with  foreign  nations,  or  between 
the  District  of  Columbia  and  any 
state  or  states  or  foreign  nations 
shall  be  deemed  criminal,  nor  shall 
those  engaged  therein  be  indictable 
orotherwise  punishable  for  the  crim- 


§89.] 


BUSINESS    AND    LABOR    COMBINATIONS. 


12^ 


§89.  Contempt  in  United  States  courts.— A  contempt 
proceeding,  said  the  Supreme  Court  in  a  recent  case,1  is  crim- 
inal in  its  nature  in  that  the  party  is  charged  with  doing  some- 


of  conspiracy,  if  such  act  committed 
by  one  person  would  not  be  punish- 
able as  a  crime,  nor  shall  such  agree- 
ment, combination,  or  contract  be 
considered  as  in  restraint  of  trade  or 


straining  order  or  injunction,"  as  it 
might  be  construed  to  forbid  the  use 
of  any  injunction  to  prevent  the 
execution  of  acts  done  in   further- 


commerce,  nor  shall  any  restraining     ance  of  agreements  not  made  crimi- 


order  or  injunction  be  issued  with 
relation  thereto.  Nothing  in  this 
act  shad  exempt  from  punishment, 
otherwise  than  as  herein  excepted, 
any  persons  guilty  of  conspiracy  for 
which  punishment  is  now  provided 
by  any  act  of  congress,  but  such  act 
of  congress  shall,  as  to  the  agree- 
ments, combinations,  and  contracts 
hereinbefore  referred  to,  be  con- 
strued as  if  this  act  were  therein 
contained. 

This  bill  was  favorably  reported 
by  a  majority  of  the  house  judiciary 
committee  of  the  57th  congress. 
The  committee  said  in  their  report 
that  no  evil  would  come  of  the  act 
as  interference  with  the  mails  was 
a  statutory  crime,  and  that  it  would 
not  legalize  acts  directly  interfering 
with  interstate  commerce.  The  mi- 
nority of  the  committee  contended 
that  the   bill  was  ambiguous,  and 


nal  by  statute,  which  if  unrestrained 
would  result  in  irreparable  injury 
to  property,  and  that  it  might  be 
wise  to  strike  out  the  word  and 
insert  "'based  solely  thereon,"  or  the 
words  ''based  solely  thereon  if  no 
unlawful  act  has  been  done  in  exe- 
cution thereof;  "  or  toadd'the  words 
"until  some  criminal  or  unlawful 
act  has  been  done  or  threatened  to 
to  be  done  in  execution  thereof; " 
but  it  was  said  "this  was  hardly 
necessary,  as  such  construction 
would  be  strained." 

The  house  passed  the  bill  without 
amendment,  but  it  was  not  reached 
in  the  senate.  It  was  reintroduced 
in  the  58th  eougress,  but  was  not 
reported  to  either  House.  At  the 
hearing  before  the  committee  of 
the  House  of  Representatives  the 
recommended  two  amendments,  by     bill  was  strongly  opposed   by  repre- 


striking  out  the  words  "nor  shall 
such  agreement,  combination,  or  con- 
tract be  considered  as  in  restraint 
of  trade  or  commerce,"  and  also  by 
adding  to  the  bill  these  words:  "pro- 
vided that  the  provision  of  this  act 
shall  not  apply  to  threats  to  injure 
the  person  or  property,  business  or 
occupation  of  any  person,  firm,  as- 


sentatives  of  business  and  manufac- 
turing associations,  on  the  ground 
that  it  was  ambiguous,  that  it  was 
not  needed  to  validate  strikes,  but 
would  validate  boycotts  and  other 
unlawful  combinations. 

This  proposed  act  goes,  as  it  will 
be  seen,  far  beyond  the  scope  of  the 
English  act  Of  1876.     That  law   re- 


sociation  or  corporation,  to  intimida-     lated  onljr  to  criminal  prosecutions 


tion  or  coercion,  or  to  any  acts  caus- 
ing, or  tending  to  cause,  illegal  in- 
terference by  overtacts  with  the 
rights  of  others." 

The  report  of  the  majority  con- 
ceded that  there  was  possibly  some 
danger  in  the  use  of  the  word 
"thereto"  in  connection  with  "re- 


and  was  intended  to  legalize  strikes. 
Unless  this  proposed  law  should  be 
construed  to  validate  boycotts  or 
sympathetic  strikes,  it  is  difficult  to 
see  what  effect  it  would  have  upon 
interstate  commerce. 

The  regulating  power  of  Congress 
extends  to  the  business  of  interstate 


1  Bessette  v.  Conkey  Co..  194  U.  S.  324,  48  L.  Ed.  997. 


124:  BUSINESS    AND    LABOR    COMBINATIONS.  [§  8». 

thing  forbidden,  and  if  found  guilty,  is  punished.  Yet  it  may 
be  resorted  to  in  civil  as  well  as  in  criminal  actions,  and  also 
independently  of  civil  or  criminal  action.  While  the  power 
to  punish  for  contempts  is  inherent  in  all  courts,  the  exercise 
of  the  power  by  the  courts  of  the  United  States  has  been  regu- 
lated by  statute,  as  follows:1 

-Courts  of  the  United  States  shall  have  power  to  impose 
and  administer  all  necessary  oaths  and  to  punish  by  fine  or 
imprisonment  at  the  discretion  of  the  courts  contempt  of  their 
authority;  provided  that  such  power  to  punish  for  contempt 
shall  not  be  construed  to  extend  to  any  case  except  the  mis- 
behavior of  any  person  in  their  presence,  or  so  near  thereto  as 
to  obstruct  the"  officers  of  said  court  in  their  official  transac- 
tions, and  the  disobedience  or  resistence  by  such  officer  or  by 
any  party,  juror,  witness  or  other  person  to  any  lawful  order, 
process,  rule,  decree,  or  command  of  said  court/1  r 

Whether  a  particular  act  constitutes  a  contempt,  as  well  as 
the  mode  of  proceeding  against  the  offender,  are  left  to  be  de- 
termined according  to  such  established  rules  of  the  common 
law  as  are  applicable  to  the  situation.  A  federal  court  may 
punish  for  contempt  in  its  presence,  or  so  near  as  to  obstruct 
justice,  though  the  offense  is  indictable.2 

The  interference  with  the  operation  of  a  road  by  a  receiver 
appointed  by  the  federal  court  is  itself  a  contempt,  as  the  re- 
ceiver is  an  officer  of  the  court,  and  no  specific  injunction  order 
in  such  cases  is  required.3  The  power  of  the  court  to  punish 
disobedience  of  an  injunction  order  by  a  party  to  the  case  as 
a  contempt  has  been  repeatedly  adjudged.4  The  power  to  pun- 
ish for  contempt  is  inherent  in  all  courts  of  record,  and  it  has 
been  held  that  in  the  case  of  courts  established  by  the  constitu- 
tion this  power  cannot  be  abridged  by  the  legislature,  as  this 
is  the  inherent  power  of  a  co-ordinate  branch  of  the  govern- 
ment.5 

It  was  intimated  by  the  Supreme  Court  however6  that  the 
power  of  the  circuit  courts  and  district  courts  of  the  United 

commerce,  and  relates  to  trade  dis-  544:  In  re  Higgins,  27  Fed.  Rep.  443; 

putes  therein  only  as  directly  affect-  Thomas  v.  R.  Co..  62  Fed.  Rep.  803. 
ing such  commerce.  4  Ex  Parte  Lennon,  166  U.   S.  548, 

'See.    725,    !:.    S.    U.    8.,   1   Com  p.  41  L.  Ed.  1110:  In  re  Debs,  158  U.  a 

State,  p.  583.  564.  39  L.  Ed.  1092. 

-'  In  re  Savin,  131  U.  S.  267,  33  L.         5  Commonwealth  v.  Carter,  96  Va. 

Ed.  L50    1889>  791  '1899). 

» United    States  v.  Kane.  23    Fed.        ,;  Ex  parte  Robinson,  19  Wall.  505, 

Rep  748;  In  reDoolittle.  23  Fed.  Rep.  22  L.  Ed.  205. 


§  89.]  BUSINESS    AND    LABOR    COMBINATIONS.  125 

States  could  be  regulated  by  Congress,  and  that  their  power  is 
limited  by  the  act  of  1831,  cited  above,  and  that  the  power  to 
punish  by  fine  and  imprisonment  is  negative  of  all  other  forms 
of  punishment.  The  Circuit  Court  said  in  the  Debs  case  l  that 
the  power  of  the  court  to  make  an  order  carries  with  it  the 
equal  power  to  punish  for  disobedience  of  that  order  and  the 
inquiry  as  to  the  question  of  disobedience  has  been  from  time 
immemorial  within  the  discretion  of  the  court.  It  was  also 
held  that  a  case  of  contempt  was  not  triable  by  jury,  nor  is  a 
judgment  on  such  charge  a  substitute  for,  or  any  defense  to  a 
criminal  prosecution  for  the  same  act. 

The  increasing  use  of  injunctions,  however,  in  trade  disputes 
has  lead  to  a  discussion  as  to  the  inherent  distinction  between 
direct  and  indirect  contempts,  that  is,  between  those  committed 
in  thepresence  of  the  court  and  properly  subject  as  such  to 
summary  hearing  and  punishment,  and  those  of  alleged  dis- 
obedience to  the  orders  of  the  court,  not  committed  in  its  pres- 
ence. It  has  been  claimed  with  force  that  as  to  this  latter 
class,  particularly  where  parties  are  charged  with  a  respons- 
ibility for  acts  of  others  under  the  law  of  conspiracy,  that  the 
hearing  should  not  be  summary,  but  should  be  regulated  by 
law  in  accordance  with  the  constitutional  guarantees  in  crim- 
inal hearing's.2 

* 

Another  classification  has  been  made  of  proceedings  for  con- 
tempts, between  criminal  or  punitive,  where  conducted  to  pre- 
serve the  power  and  vindicate  the  dignity  of  the  court  and  to 
punish  for  disobedience  of  their  orders,  and  civil,  remedial  or  co- 
ercive contempts  instituted  to  protect  and  enforce  the  rights  of 

1 158  U.  S.,  1.  c.  594.  and  a  jury  trial,  if  applied  for  by  the 

-In  the  54th  congress,   1896,  a  bill  accused,  with  a  preservation  of  the 

was    reported     from    the   judiciary  testimony  by  bill  of  exceptions  and 

committee,  providing  that  contempts  stay  of  the  judgment  upon  giving 

be   divided   into   two  classes,  direct  bond  pending  appeal. 
and  indirect,   the   former  including         The  provisions  of  the  act  applied 

contempts    committed    during    the  to  all  proceedings  for  contempt  in  all 

sitting  of  a    court,  or  of  a  judge  in  courts    except    the   supreme   court, 

chambers,  or  so   near  thereto   as  to  The  bill  passed   the  senate  and  was 

obstruct      the      administration     of  reported   with  amendments  by  the 

justice.  These  were  to  be  punishable  house      judiciary     committee     (see 

summarily,  without  written  accusa-  House    Report    No.    2471,    54th  con- 

tion;  while  the  other,  that  is,  indi-  gress),   but  it    was   not   reached  for 

rect  contempts,  were  to  require  an  passage.     It  has  been   introduced   in 

order  to  show  cause  and  a  procedure  substantially  the  same   form  in  dif- 

upou  testimony,  as  in  criminal  cases,  ferent  congresses  since. 


126  BUSINESS    AXD    LABOR    COMBINATIONS.  [§  89. 

private  parties.1  A  criminal  contempt,  said  the  Court  of  Ap- 
peals in  the  case  cited,  involves  no  element  of  personal  injury. 
It  is  directed  against  the  power  and  dignity  of  the  court,  and 
private  parties  have  little,  if  any,  interest  in  the  proceeding  for 
its  punishment.  It  was  said  by  the  supreme  court  in  the  Bes- 
sette  case,  which  was  a  trade  dispute  not  involving  interstate 
oommeree,2  that  it  may  not  be  always  easy  to  classify  the  par- 
ticular act  as  belonging  to  either  one  of  these  two  classes,  and 
that  it  may  partake  of  the  characteristics  of  both.  Thus,  in 
cases  involving  combinations  interfering  with  interstate  com- 
merce, whether  filed  directly  by  the  government  or  by  public 
carriers,  it  would  seem  that  the  violation  of  the  injunction 
order,  made  for  the  promotion  of  public  and  not  private  ends, 
w«»ukl  properly  fall  into  the  class  of  criminal  rather  than  civil 
contempts. 

The  law  of  conspiracy  has  been  applied  in  proceedings  for 
contempt,  and  persons  not  parties  to  the  record  have  been 
charged  with  contempt  as  co-conspirators  with  the  defendants, 
and  therefore  in  law  responsible  for  their  acts.3  The  liability 
to  punishment  for  contempt  is  not  limited  to  parties  to  the  rec- 
ord, but  any  person,  who  knowingly  assists  in  defeating  the 
cider  of  a  court,  may  be  charged  with  contempt  therefor.  In 
such  cases,  however,  where  the  injunction  has  been  issued  for 
the  benefit  of  a  private  person  with  no  public  interest  involved, 
the  offense.of  the  person  not  a  party  is  solely  that  of  resistance 
to  the  authority  and  dignity  of  the  court  and  he  should  be 
proceeded  against  upon  that  theory,  and  not  upon  the  theory 
of  being  bound  by  the  injunction  as  a  party  thereto.4 

An  order  of  a  Federal  Circuit  Court,  adjudging  a  person  not 
a  party  to  a  suit  guilty  of  contempt  for  conspiring  to  violate  an 
injunction  in  a  trade  dispute,  was  held  reviewable  by  writ  of 
error  in  the  Circuit  Court  of  Appeals,  but  in  such  a  writ  only 
matters  of  law  can  be  considered,  the  decision  of  the  trial  trib- 
unal being  conclusive  of  the  facts.0 

Un  re   Nevitt,   Cir.  Ct.  App.,  8th  4  See  In  re  Reese,  98  Fed.  Rep.  984, 

Circuit.  55  C.  « '.  A.  622, 117  Fed.  Rep.  mpra. 

448,  quoted  by  the  supreme  court  in  ■>  Bessette    v.    Conkey    Co.,    supra 

Bessette  v.    W.    R.   Conkey  Co.,   194  (1904).     See   also   In   re   Christensen 

l  r.  S.  324  I.  a,  p.  328,    48  L.  Ed.  99T.  Engineering  Co..  194  U.  S.  458,  4S  L. 

_<1   r._    p.  :;.'.,.  Ed.  1072,  holding  reviewable  by  writ 

3  See  In  re  Bessette.  Ill  Fed.  Rep.  of  error  an  order  of  the  circuit  court 

41^  adjudging  a  defendant  in  a  patent 


§  90.]  BUSINESS    AND    LABOR    COMBINATIONS.  127 

§  90.  Mandatory  injunctions   in  interstate  commerce. — 

As  a  preventive  remedy  is  the  only  adequate  remedy  in  the  case 
of  a  threatening  of  commerce,  the  form  of  the  preventive  relief 
must  be  adapted  to  the  emergency,  and  the  injunction  manda- 
tory in  its  terms  is  therefore  often  the  only  remedy  which 
meets  the  emergency.  A  mandatory  injunction  is  one  that 
compels  the  defendant  to  restore  things  to  their  former  con- 
dition, and  virtually  directs  him  to  perform  the  act.  Specific 
provision  is  made  in  the  Interstate  Commerce  Act  for  a  man- 
damus to  compel  the  performance  of  the  duties  of  a  carrier. 
Section  23  of  the  Interstate  Commerce  Act,  infra. 

Such  an  injunction  may  be  issued  as  well  upon  a  proper 
showing  on  a  preliminary  as  on  a  final  hearing.  It  was  said 
by  Tuft,  J.,1  that  the  office  of  a  preliminary  injunction  is  to  pre- 
serve the  status  quo  until  upon  final  hearing  the  court  may 
grant  full  relief,  and  generally  this  can  be  accomplished  by  an 
injunction  prohibitory  in  form.  It  may  sometimes  happen, 
however,  that  the  status  quo  is  not  a  condition  of  rest,  but  of 
action,  and  the  condition  of  rest  is  exactly  what  will  inflct  an 
irreparable  injury  upon  the  complainant.  In  such  cases,  there- 
fore, it  is  only  a  mandatory  injunction,  compelling  the  traffic 
to  flow  as  it  is  wont  to  flow,  which  Avill  protect  the  complain- 
ant from  injury. 

It  was  said  by  the  Supreme  Court2  that  it  is  one  of  the  most 
useful  functions  of  a  court  of  equity  that  its  methods  of  pro- 
cedure is  capable  of  being  made  such  as  to  accommodate  them- 
selves to  the  development  of  the  interests  of  the  public  in  the 
progress  of  trade  and  traffic  by  new  methods  of  intercourse 
and  transportation,  and  it  may  be  added,  in  securing  the  un- 
interrupted movement  of  commeree.3 

suit  guilty  of  contempt  in  disobey-  3  In  So.  Cal.  Co.  v.  Rutherford)  So* 
ing  the  preliminary  injunction  and  Disk  of  Cal.),  62  Fed.  Rep.  796,  the 
ordering  him  to  pay  a  fine,  one-half  court  granted  an  injunction  to  a  rail- 
to  the  United  States  and  ono-half  to  road  company  against  its  employees, 
the  complainant  on  the  ground  that  compelling  them  to  perform  all  their 
the  fine  payable  to  the  United  States  regular  and  accustomed  duties  as 
was  clearly  punitive  and  as  such  re-  Ions  as  they  remain  in  the  employ- 
viewable  without  waiting  for  final  ment  of  the  complainant  company, 
decree  in  the  cause.  This  was  in  a  case  where  the  em- 

iToledo,   A.   A.,  etc.  R.  Co.   Case,  ployees,    while    continuing    in    the 

supra.  service,  had  boycotted  the  Pullman 

2  Joy  v.  St.  Louis,  138  U.  S.  1,  1.  c,  Car  Co. 
p.  50.  :J4  L.  Ed.  859. 


CHAPTER  V. 

THE  FEDERAL  CONTROL  OF  STATE  REGULATION. 

Page. 
§  91.     State  regulation  of  railroads  under  State  Commissions 128 

92.  The  power  of  regulation  independent  of  state  or  federal  incor- 

poration    129 

93.  The  limitations  of  the  state  authority  in  domestic  traffic 130 

94.  The  adoption  of  the  Fourteenth  Amendment 131 

95.  Federal  review  of  state  regulation  of  carriers 131 

9G.     Procedure  in  federal  review  of  state  regulation 132 

UT.     Limitation  by  federal  authority  of  the  state's  power  in  regulat- 
ing interstate  rates  133 

98.  What  is  reasonableness  in  the  limitation  of  state  authority 135 

99.  Nti  definite  standard  of  reasonableness  in  railroad  rates 137 

100.  Protection  of  the  carrier  against  discriminating  state  legislation..  138 

101.  Exteut  of  the  state  power  of  regulation 138 

in.'.  The  state  anti-trust  laws  and  the  Fourteenth  Amendment 140 

103.  Classification  in  state  railroad  legislation 142 

§91.  State  regulation  of  railroads  under  State  Commis- 
sions.— The  complexity  of  our  dual  form  of  government  is  no- 
where more  forcibly  illustrated  than  in  the  administration  of 
the  railway  system  of  the  country  under  the  statecommissions 
as  to  their  state  traffic,  and  under  the  Interstate  Commerce 
Commission  as  to  their  interstate  traffic.  The  power  of  the 
states  to  regulate  the  rates  of  railroads  and  other  carriers  had 
been  definitely  established  in  the  Granger  cases  as  already  seen, 
prior  to  the  adoption  of  the  Interstate  Commerce  Act.  This 
power  of  the  states  could  be  exercised  either  directly  by  the 
legislature  fixing  the  rates,  or  could  be  delegated  to  a  commis- 
sion acting  for  the  state.  Commissions  had  been  established 
in  many  of  the  states  prior  to  1SS7,  some  with  advisory  powers 
and  others  with  powers  to  fix  maximum  rates.1 

it  was  held  by  the  Supreme  Court,2  that  a  railroad  forming 
a  continuous  line  in  two  or  more  states,  and  owned  and  man- 
aged by  a  corporation,  whose  corporate  powers  are  derived 
from  the  legislatures  of  each  state  in  which'the  road  is  situated, 

'  See  review  of  state   commission        -  Railroad   Commission  Cases,  lift 
statutes  in  Maximum  Rate  Case,  107    U.  S.  307  (1886),  2d  L.  Ed.  636. 
I\  S.  1.  <••  405  (1897),  42  L.  Ed.  251. 


§  92.]  FEDERAL    CONTROL    OF    STATE    REGULATION.  129 

is  as  to  the  domestic  traffic  of  each  state  a  corporation  of  that 
state  subject  to  the  laws  of  the  state  not  in  conflict  with  the 
constitution  of  the  United  States.  It  was  also  established  that 
an  authorization  of  a  commission  by  a  state  to  fix  a  schedule 
of  rates  for  a  railroad  was  not  an  unconstitutional  delegation 
of  legislative  power.1  Justice  Brewer  said  in  the  case  first 
cited  that  the  line  of  demarcation  between  legislative  and  ad- 
ministrative functions  was  not  easily  discernable  and  that  the 
reasonableness  of  a  rate  was  constantly  changing  with  chang- 
ing circumstances,  and,  therefore,  was  peculiarly  a  subject  for 
an  administrative  board  to  determine. 

The  entire  expense  of  a  state  railroad  commission  may  be 
lawfully  assessed  upon  railroads  operating  within  a  state  in 
proportion  to  their  operated  mileage  within  the  state.2  The 
court  said  that  as  the  railroad  commission  was  charged  with 
special  duties  in  the  general  supervision  of  the  railroads  of  the 
state  for  the  benefit  of  the  public,  it  was  reasonable  that  the 
expense  should  be  so  apportioned,  and  there  was  in  this  no  viola- 
tion of  the  state  constitution  providing  for  uniformity  in  taxa- 
tion. 

§  92.  The  power  of  regulation  independent  of  state  or  fed- 
eral incorporation. — This  power  of  regulation  under  state 
commissions,  as  that  of  the  Interstate  Commerce  Commission, 
under  the  Interstate  Commerce  Act,  is  dependent  upon  the 
character  of  the  traffic,  whether  intrastate  or  interstate,  and 
not  upon  the  state  or  federal  incorporation  of  the  carrier.  The 
same  railroad  is  subject  as  to  these  two  classes  of  traffic  to  the 
state  and  federal  authority,  respectively.  Thus  the  power  of 
the  interstate  commerce  commission  extends  to  railroads  or- 
ganized under  state  and  federal  authority  as  well  as  to  corpora- 
tions organized  under  the  laws  of  Canada  and  operating  in  the 
United  States.  In  the  Merger  case  a  corporation  organized 
under  state  authority,  for  the  purpose  of  holding  the  stock  of 
competing  interstate  railroads,  was  adjudged  an  unlawful  com- 
bination under  the  Anti-Trust  Act  of  Congress.3 

i  Chicago  &  N.  W.  R.  Co.  v.  Dey,  35  s  Regan  v.   Mercantile  Trust   Co., 

Fed.  Rep.  S66;  also  Railroad  Corn  mis-  supra:  Ames  v.  Union  Pacific  R.  Co., 

sion  Cases,  supra;  Regan  v.  Farmers  64  Fed.  Rep.  165;   Smyth  v.   Ames, 

Loan  &  Trust  Co.,  supra.  supra. 

2  See  supra,  §  53. 


130  FEDERAL    CONTROL    OF    STATE    REGULATION.  [§  93. 

On  the  other  hand,  as  to  state  traffic,  it  is  immaterial  by  what 
agency  it  is  performed,  that  is,  whether  by  a  state  or  a  fed- 
eral corporation.  Railroads  deriving  their  franchises  from 
»ress  are  subject  to  the  control  of  the  state  in  all  matters 
of  taxation,  rates  on  domestic  traffic,  and  to  all  reasonable 
police  regulations.  Such  subjection  of  such  corporations  to  the 
laws  of  the  state  is  not  based  on  the  acceptance  by  the  railroad 
company  of  state  legislation,  but  results  from  the  failure  of  Con- 
gress to  express  any  intention  in  the  act  of  incorporation  that 
they  shall  be  exempt  from  state  control.1 

§J)3.  The  limitations  of  the  state  authority  in  domestic 
traffic. —  It  was  held  in  the  leading  case  of  the  "Wabash  Kail- 
way  Company  that  a  state  commission  had  no  regulating 
power  over  a  through  interstate  rate,  that  is,  over  even  that 
part  of  it  which  was  within  the  state.  The  limitations  of  the 
state  authority  were  further  illustrated  in  the  two  Kentucky 
cases  decided  in  1901.  In  the  first  of  these,2  the  court  affirmed 
the  Kentucky  court  in  sustaining  a  conviction  of  the  railroad 
company  for  violation  of  the  long  and  short  haul  clause  of  the 
Kentucky  statute  in  a  rate  on  an  intrastate  shipment.  The 
court  below  had  excluded  evidence  that  the  rates  were  reason- 
able per  se,  and  held  that  it  was  immaterial  that  the  less  charge 
for  the  longer  haul  was  induced  by  competition,  on  the  ground 
that  the  state  had  authorized  the  state  commission  to  <nve  re- 
lief  on  application.  In  the  other  case  at  the  same  term,3  the 
Supreme  Court  held  the  Kentucky  statute  unconstitutional  as 
construed  by  the  state  court  in  its  application  to  a  long  and 
short  haul  where  the  short  haul  was  wholly  within  the  state 
and  the  long  haul  was  partly  within  and  partly  without  the 
state.  The  court  said  that  the  direct  effect  of  the  statute  so 
construed  was  to  regulate  the  interstate  rate,  for  it  was  im- 
possible for  the  carrier  to  do  any  interstate  business  at  the 
local  rate,  and  so  it  must  give  up  its  interstate  business,  or  else 
reduce  the  local  rate  in  proportion.  The  result  therefore  was 
a  direct  interference  with  commerce  between  the  states,  car- 
ried on  though  it  may  be  by  a  single  company. 

i  C.  C.  &  A.  R  Co.  v.   Gibbes,  142     U.  S.  503  (1900).  46  L.  Ed.  298,  revers- 
U.  S.  380,  35  L.  Ed.  1051  (1892).  inS  103  Fed.  Rep.  216. 

2  L.  &  X.  R.  Co.  v.  Kentucky,  183        3  l.  &  N.  R.  Co.  v.  Eubank,  184  U. 

S.  27  (1903),  40  L.  Ed.  416. 


§§  91,  95.]      FEDERAL    CONTROL    OF    STATE    REGULATION.  131 

§  94.  The  adoption  of  the  Fourteenth  Amendment. —  Prior 

to  the  adoption  of  the  Fourteenth  Amendment  in  1868,  there 
was  no  appeal  to  the  federal  courts  against  any  violation  by 
state  power  of  due  process  of  law  or  of  the  equal  protection  of. 
the  laws,  which  did  not  involve  an  interference  with  national 
authority  or  a  violation  of  some  provision  of  the  federal, 
constitution.  The  federal  courts  administered  the  state  laws 
and  followed,  as  they  still  do,  the  decision  given  by  the  state 
courts  as  to  the  construction  of  the  state  statutes. 

The  fourteenth  amendment  provided  in  its  first  clause  that 
no  state  should  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws.  Corporations 
are  persons  under  this  amendment  and  are  therefore  entitled 
to  due  process  of  law  and  to  the  equal  protection  of  the  laws,' 
and  a  state  has  no  more  power  to  deny  the  equal  protection 
of  the  laws  to  a  corporation  than  it  has  to  individual  citizens.2 

This  far-reaching  change  in  our  judicial  system,  wherein  the 
fundamental  rights  of  property  are  protected  by  the  federal 
power  against  state  invasion,  was  adopted  about  the  same 
time  that  the  judicial  declaration  of  the  freedom  of  interstate 
commerce  against  state  interference  had  opened  the  way  for 
the  direct  exercise  of  the  federal  regulating  power. 

§  95.  Federal  review  of  state  regulation  of  carriers. —  The 
comprehensive  power  of  the  state  in  the  regulation  of  the 
intrastate  traffic  of  carriers,  whether  exercised  directly  under 
legislative  act  of  the  state  or  through  a  commission  of  the  state, 
is  subject  to  the  jurisdiction  of  the  courts  of  the  United  States 
under  the  provisions  of  the  Fourteenth  Amendment  guarantee- 
ing due  process  of  law  and  the  equal  protection  of  the  laws  to 
all  persons  against  any  invasion  by  state  authority. 

A  suit  against  a  state  commission  or  state  officials  actin fo- 
under the  authority  of  a  state  in  fixing  rates  of  carriers  is  not 
a  suit  against  the  state  within  the  meaning  of  the  Eleventh 
Amendment  of  the  Federal  Constitution.3 

1  Santa  Clara  County  v.  Southern  3  Chicago.  Milwaukee  &  St.  Paul 
Pacific  R.  Co.,  118  U.  S.  394  (1S88),  30  R.  Co.  v.  Becker,  35  Fed.  Rep.  883 
L.  Ed.  118.  (1888);    Reagan  v.  Farmers  Loan  & 

2  Railroad  Co.  v.  Ellis,  165  U.  S.  1.  c.     Trust  Co..  154  U.  S.  362  (1894),  38  L. 
154  (1897),  41  L.  Ed.  667.  Ed.  1014.  1021;  So.  Ry.  Co.  v.  Greens- 
boro Ice  &  Coal  Co,,  134  Fed.  Rep.  83. 


l'S'Ji  FEDERAL    CONTROL    OF    STATE    REGULATION.  [§  96. 

The  jurisdiction  of  the  courts  of  the  United  States  in  such 
cases  does  not  depend  upon  the  unconstitutionality  of  the  state 
statute,  as  a  valid  law  may  be  wrongfully  administered  by  the 
officers  of  the  state.  If  the  statute  of  the  state,  as  construed 
by  the  highest  court  of  the  state  having  jurisdiction,  denies 
due  process  of  law  or  equal  protection  of  the  laws,  the  federal 
jurisdiction  under  the  Fourteenth  Amendment  may  be  invoked.1 

This  power  of  the  federal  courts  cannot  be  limited  by  state 
legislation.  One  who  is  entitled  to  sue  in  the  federal  circuit 
court  may  invoke  its  jurisdiction  in  equity  whenever  the  estab- 
lished principles  and  rules  of  equity  permit  such  suit  in  that 
court,  and  he  cannot  be  deprived  of  that  right  by  reason  of 
being  allowed  to  sue  at  law  in  the  state  court  or  before  a  state 
board  on  the  same  cause  of  action.2 

An  act  of  a  state  providing  that  the  rates  charged,  estab- 
lished by  a  commission,  shall  be  final  and  conclusive  as  to 
what  are  reasonable  charges,  and  which,  as  construed  by  the 
supreme  court  of  the  state,  precludes  any  judicial  inquiry  as 
to  the  reasonableness  of  the  rates,  deprives  the  company  of  its 
property  without  due  process  of  law  and  of  the  equal  protec- 
tion of  the  laws.3  The  carrier  is  thus  secured  under  the  Four- 
teenth Amendment,  not  only  in  a  judicial  hearing  upon  the 
question  of  his  intrastate  rates,  but  also  in  his  right  to  charge 
reasonable  rates;  and  the  reasonableness  or  unreasonableness 
of  the  rates  established  under  state  authority  will  be  reviewed 
by  the  federal  courts  in  determining  whether  or  not  the  com- 
pany is  deprived  of  its  property  without  due  process  of  law.4 

§  96.  Procedure  in  federal  review  of  state  regulation. — 
The  question  of  reasonableness  of  rates  may  be  raised  by  a 
carrier  by  way  of  defense  by  action  at  law  for  the  penalties 
imposed  by  the  act  of  a  state  legislature,5  and  also,  preferably, 
by  a  bill  in  equity  directly  challenging  the  validity  of  the 
rates. 

The  circuit  courts  of  the  United  States  have  jurisdiction  of 

1  Reagan  v.  Farmers  Loan  &  Trust  supra;    Chicago.    Mil.    &    St.    Paul 

Co.,  supra.  R-  Co.  v.  Tompkins,  176  U.  S.  167,  44 

-Smyth  v.  Ames,  supra.  L.  Ed.  417;  Covington  &  Lexington 

|  hie-ago,  etc.  R.  Co.  v.  Minnesota,  Turnpike  Co.  v.  Sandford,  164  U.  S. 

134  U.  S.  418  (1390),  33  L  Ed.  970.  578  (1896),  41  L.  Ed.  560. 

♦  Smyth   v.   Ames,  supra;  Reagan        5St.   Louis  &  S.  F.  R.  Co.  v.  Gill, 

v.     Farmers'    Loan     &     Trust     Co.,  150  U.  S.  6(184  e95),  39  L.  Ed.  567. 


§  97.]  FEDERAL    CONTROL    OF    STATE    REGULATION.  133 

an  action  of  the  non-resident  stockholders  of  such  companies 
against  the  companies  and  the  state  officials  contesting  state- 
imposed  rates.  As  in  the  case  where  a  suit  can  be  maintained 
in  the  courts  of  a  state,  the  United  States  circuit  court  will 
protect  property  rights  of  a  citizen  of  another  state  who  in- 
vokes the  jurisdiction  of  the  federal  courts.1  But  where  the 
basis  of  the  complaint  is  that  the  rates  established  by  the  state 
are  confiscatory  and  unreasonable  and  violative  of  due  process 
of  law  under  the  Fourteenth  Amendment,  the  federal  courts 
would  have  jurisdiction  irrespective  of  citizenship.  This  juris- 
diction may  be  exercised  through  writ  of  error  to  the  highest 
court  of  the  state,  where  the  federal  right  invoked  is  decided 
adversely  to  the  claimant  by  the  state  court,  or  the  jurisdic- 
tion may  be  exercised  in  a  direct  proceeding  in  the  assertion 
of  the  federal  right  in  the  United  States  Circuit  Court.  It  was 
said  by  the  Supreme  Court  in  a  recent  case2  that  it  was  a  bet- 
ter practice  in  cases  contesting  the  reasonableness  of  carriers' 
rates  to  refer  the  testimony  to  some  competent  master  to 
make  all  needed  computations  and  find  fully  the  facts,  and 
that,  in  view  of  the  difficulties  and  importance  of  such  a  case, 
it  was  imperative  that  the  most  competent  and  reliable  mas- 
ter, general  or  special,  should  be  selected,  for  it  is  not  a  light 
matter,  said  the  court,  to  interfere  with  the  legislation  of  a 
state  in  respect  to  prescribing  rates,  nor  a  light  matter  to  per- 
mit such  state  legislation  to  wreck  large  property  interests.3 

§  97.  Limitation  by  federal  authority  of  the  state's  power  in 
regulating  intrastate  rates. — The  regulation  by  the  state  of  in- 
trastate rates  in  the  exercise  of  its  authority  over  domestic  com- 
merce has  been  reviewed  by  the  Supreme  Court  in  this  juridic- 
tion  under  the  Fourteenth  Amendment  in  cases  from  Arkansas,4 

1  Reagan  v.  Farmers'  Loan  &  Trust    Railroad     Commissioners,    90     Fed.   i 
Co.,  154  U.  S.  391  (1394),  38  L.  Ed.     Rep.  33. 

1021.  *  St.    Louis    &    S.    R.   Co.  v.   Gill. 

2  Chicago,  Milwaukee  &  St.  Paul,  supra;  Dow  v.  Beidelman,  125  U.  S. 
R.  Co.  v.  Tompkins,  176  U.  S.  167,  680  (1888)-,  31  L.  Ed.  841.  In  the  latter, 
44  L.  Ed.  417  (1900),  reversing  90  an  Arkansas  ease,  the  court  said 
Fed.  Rep.  363.  that  in  the  absence  of  evidence  of 

3  As  to  the  proper  allegations  in  the  amount  invested  in  an  organized 
the  bill  of  complaint  to  restrain  en-  corporation  the  fact  that  the  income 
forcement  of  an  order  of  a  state  of  the  road  at  the  rate  of  fare  fixed 
commission  reducing  rates,  see  Wil-  by  the  legislature  would  only  be 
mington   &    W.  R.  Co.  v.  Board   of  one-half  of  one  per  cent,  on  the  orig- 


134  FEDERAL    CONTROL    OF    STATE    REGULATION.  [§  97. 

Texas,1   Nebraska,2   Michigan,3    South    Dakota4   and   Minne- 
sota.5 

In  the  Texas  rate  case  the  Supreme  Court  reversed  the  de- 
cree of  the  circuit  court  in  so  far  as  it  restrained  the  railroad 
commission  from  discharging  the  duties  imposed  by  the  legis- 
lative act  and  from  proceeding  to  establish  reasonable  rates, 
but  affirmed  the  decree  in  so  far  as  it  restrained  the  commis- 
sion from  enforcing  the  rates  already  established.  The  en- 
forcement of  the  state  rates  was  also  enjoined  in  the  Nebraska 
rate  ease,  and  in  the  South  Dakota  case  the  decree  of  the  cir- 
cuit court  refusing  to  enjoin  and  dismissing  the  bill  of  the  rail- 
road company  was  reversed  with  directions  to  the  circuit  court 
to  determine  the  reasonableness  of  the  rates.  In  the  other 
cases  it  was  ruled  that  the  railroad  company  failed  to  over- 
come the  presumption  of  the  reasonableness  of  the  rates  fixed 
by  the  state  authority. 

In  these  cases  in  the  federal  courts,  however,  the  standard 
of  reasonableness  considered  by  the  court  is  not  the  same  as 
that  involved  in  the  determination  of  what  is  reasonable  be- 
tween a  carrier  and  its  patrons,  whether  raised  under  the 
Interstate  Commerce  Act  or  otherwise.  It  is  not  what  the 
carrier  can  charge  under  the  common  law  rule  of  reasonable- 
ness, but  what  limit  the  state  can  lawfully  impose  upon  his 
contractual  power  in  making  rates  without  violating  the 
federal  constitutional  guaranty  against  the  taking  of  property 
without  due  process  of  law. 

In  all  such  cases  where  the  federal  power  is  invoked  to  pre- 
vent the  enforcement  of  rates  imposed  by  the  states,  the  pre- 
sumption is  that  the  rates  thus  imposed  are  reasonable,  and  it 
devolves  upon  the  carrier  to  show  that  the  enforcement  of  such 
rates  would  involve  a  confiscation  of  property  rights,  that  is, 
the  taking  of  property  without  due  process  of  law.  This  in- 
volves the  determination  of  what  is  a  reasonable  profit  upon 

inal  cost  of  the  road  did  not  show  a  4  Chicago,    M.  &  St.  P.   R.  Co.   v. 

taking  of  property  without  due  pro-  Tompkins,  supra. 

cess  of  law.  5  Chicago,  etc.  R.  Co.  v.  Minnesota, 

i  Reagan  v.  Farmers'  Loan  &  Trust  134  TJ.  S.  418,  33  L.  Ed.  970;  Minne- 

Co..  supra.  apolis  &  St.  Louis  R.  Co.  v.  Minne- 

-  Smyth  v.  Ames,  supra.  sota,  186  U.  S.  257  (1902;,  46  L.  Ed. 

3  Chicago  Grand   Trunk   R.  Co.  v.  1151. 
Well  man,  143   TJ.  S.  339  (1892),  36  L. 
Ed.  170. 


§  98.]  FEDERAL    CONTROL    OF    STATE    REGULATION.  135 

his  investment,  to  which  a  carrier  is  entitled.  As  to  the  dif- 
ferent elements  to  be  considered  in  determining  the  limits  of 
this  right  to  reasonable  profits,  see  §  126,  infra,  "Capitaliza- 
tion of  Railroads  as  a  Basis  for  Rates." 

On  the  other  hand,  in  actions  against  the  carrier,  whether 
under  the  Interstate  Commerce  Act  or  otherwise,  the  party 
complaining  must  make  proof  of  unreasonableness,  as  he  is  the 
\   actor  and  is  bound  to  prove  his  case.     See  §  133,  infra} 

Another  distinction  is  to  be  observed  between  the  two 
classes  of  cases  wherein  the  federal  authority  is  invoked  in  the 
supervision  of  railway  rates,  in  that  in  proceedings  under  the 
fourteenth  amendment  the  entire  schedule  of  maximum  rates 
imposed  by  state  authority  is  usually  challenged  while  in  the 
cases  under  the  Interstate  Commerce  Act,  as  will  be  hereafter 
seen,  it  is,  as  a  rule,  the  reasonableness  of  the  rates  on  specific 
commodities  or  to  or  from  specified  localities,  or  more  usually 
the  relation  of  rates  as  between  competing  communities  or 
kinds  of  traffic  which  is  brought  under  review. 

§  98.  What  is  reasonableness  in  the  limitation  of  state 
authority. —  It  was  said  by  Justice  Brewer  in  the  Circuit  Court 
in  the  Nebraska  Rate  case,  subsequently  affirmed  by  the  Su- 
preme Court,  that  the  test  to  determine  the  reasonableness  of 
rates  was  not  well  settled,  and  that  it  was  doubtful  whether 
any  single  rule  could  be  laid  down  applicable  to  all  cases;  and 
in  another  case  it  was  said  by  the  Supreme  Court  that  few  if 
any  questions  were  more  difficult  and  perplexing  than  those 
involving  the  validity  of  the  rates  prescribed  for  carriers  by 
a  state  legislature. 

In  the  Texas  Rate  case  the  Court  based  its  decision,  enjoin- 
ing the  enforcement  of  the  rates,  on  the  facts  established  in 
the  case  as  to  the  cost  and  present  value  of  the  railroad,  the 
voluntary  steady  decrease  of  its  rates  and  the  proof  adduced 

1  The  burden  is  upon  the  complain-  §  48,  supra),  the  rulings  of  the  Com- 
ing shipper  in  proceedings  before  the  mission,  in  the  absence  of  judicial 
Commission.  But  in  judicial  pro-  proceedings,  would  be  self-enforcing, 
ceedings  to  enforce  the  ruling  of  the  subject  to  review  in  the  court  of 
Commission,  the  findings  of  fact  of  transportation,  and  in  such  judicial 
the  Commission  are  made primafacie  proceedings  the  findings  of  fact 
evidence  as  to  every  fact  found,  made  by  the  Commission  are  to  be 
Under  the  proposed  amendment  of  received  as  primafacie  evidence, 
the  Interstate  Commerce  Act   (see 


130  FEDERAL    CONTROL    OF    STATE    REGULATION.  [§  98. 

that  the  proposed  tariff  would  prevent  the  road  paying  inter- 
est on  its  bonds,  nothing  being  shown  to  justify  such  a  result. 

In  the  Nebraska  Rate  case  it  was  definitely  ruled  that  the 
reasonableness  of  local  rates  must  be  determined  without  ref- 
erence to  interstate  rates,  over  which  the  state  hail  no  control. 
The  state,  it  was  said,  could  not  justify  unreasonably  low  rates 
for  domestic  transportation  on  the  ground  that  the  carrier  was 
earning  large  profits  on  its  interstate  business,  nor,  on  the 
other  hand,  could" the  carrier  justify  unreasonably  high  rates 
on  domestic  business  on  the  ground  that  only  in  that  way 
could  it  meet  the  losses  on  its  interstate  business. 

In  the  South  Dakota  Rate  case  the  Court  said  that  the  cir- 
cuit court  erred  in  making  a  comparison  between  the  gross  re- 
ceipts from  local  business,  under  the  existing  and  proposed 
rates,  without  considering  also  the  cost  of  doing  the  local  busi- 
ness and  ascertaining  the  net  earnings  and  determining  there- 
from the  true  effect  of  the  reduction.1 

A  definite  rule  has  not  been  laid  down  in  any  of  these  cases 
as  to  what  is  the  reasonable  rate  which  a  carrier  will  be  pro- 
tected by  the  federal  authority  in  charging  within  a  state.  The 
carrier  is  entitled  to  charge  a  reasonable  profit  in  his  domestic 
business  as  in  its  interstate  business,  and  the  state  cannot  en- 
force rates  unreasonably  low  within  the  state  because  the  car- 
rier is  charsrino-  unreasonable  rates  on  its  interstate  business. 
In  ascertaining  the  value  of  the  property  upon  which  income 
is  to  be  earned,  it  is  not  the  cost,  but  the  present  value,  which 
is  to  be  considered.  But  in  ascertaining  value  the  original 
cost,  the  amount  expended  for  permanent  improvements,  the 
present  as  compared  with  the  original  cost,  are  all  facts  to  be 
considered.  It  has  also  been  said  that  in  determining  the  rea- 
sonableness of  rates,  the  betterments  and  replacements  made 
necessary  by  the  growth  of  traffic,  and  also  the  permanent  es- 
tablishment and  good  will  should  be  considered,  and  that  the 
mere  valuation  of  the  physical  structure  of  a  road  is  too  nar- 
row a  basis  when  a  road  is  constructed  and  the  property  in- 
vested with  a  view  to  the  future,  and  the  original  investment 
is  made  at  a  time  when  the  conditions  of  the  country  are  such 
as  to  give  no  expectation  of  reasonably  profitable  earnings.1 

1  For  disposition  of  this  case  in  cir-  -  S>e  cases,  supra,  and  also  Metro- 
cuit  court,  after  remanding,  see  110  po'.itan  Trust  Co.  v.  Railroad  Co.,  90 
I '."I.  Rep.   IT:;,  infra,  sec.  127.  Fed.  Itep.   083.     For  further  discus- 


§  99.]  FEDERAL    CONTROL    OF    STATE    REGULATION.  137 

§  99,  No  definite  standard  of  reasonableness  in  railroad 
rates. —  The  subject  of  the  reasonableness  of  railroad  rates  and 
the  factors  to  be  considered  in  the  determination  of  such  rea- 
sonableness have  thus  been  considered  by  the  federal  courts  in 
two  classes  of  cases.  That  is,  in  cases  arising  under  the  Inter- 
state Commerce  Act,  where  the  shipper  complains  that  he  is 
charged  by  the  carrier  more  than  a  reasonable  rate,  and  in 
cases  arising  under  state  laws,  where  the  carrier  complains  that 
he  is  prohibited  by  the  state  law  or  order  of  a  state  commis- 
sion having  the  force  of  law  from  charging  a  reasonable  rate. 

While  the  Interstate  Commerce  Act  reaffirms  the  common 
law  in  the  requirement  of  reasonableness,  neither  the  statute 
nor  the  common  law  furnishes  any  definite  standard  for  the 
determination  of  what  is  reasonable.  In  ordinary  business 
transactions  a  reasonable  charge  for  a  personal  service  is  the 
resultant  of  the  free  economic  forces  of  supply  and  demand. 
It  is  obvious  that  under  the  complicated  conditions  of  railway 
transportation  this  free  play  of  the  economic  forces  of  sup- 
ply and  demand  does  not  ordinarily  exist.  "When  competition 
does  act  in  determining  railway  rates,  it  is  only  at  certain 
points,  as  terminal  centers,  where  the  rate  may  be  made  un- 
reasonable from  the  carrier's  point  of  view,  while  at  local  points 
on  the  same  line  it  may  not  exist  at  all.  The  standard  of  rea- 
sonableness, therefore,  is  one  thing  for  the  railroad  manager 
who  wishes  to  secure  at  all  times  a  reasonable  profit  upon  the 
cost  of  service,  and  a  very  different  thing  for  the  shipper  who 
wishes  to  secure  at  all  times  a  reasonable  profit  for  his  own 
business  as  against  his  competitors  in  other  communities. 

In  the  Trans-Missouri  Freight  Association  case1  the  court, 
referring  to  the  argument  that  the  Anti-Trust  Act  of  1S90 
should  not  be  construed  as  applying  to  agreements  resulting 
in  only  the  reasonable  regulation  of  rates,  said:  "  What  is  a 
proper  standard  by  which  to  judge  the  fact  of  reasonable  rates?  " 
And  after  commenting  upon  the  different  factors  to  be  consid- 
ered said:  "That  it  it  is  quite  apparent  that  it  is  exceedingly 
difficult  to  formulate  even  the  terms  of  the  rule  itself  which 
should  govern  in  the  matter  of  determining  what  would  be 
reasonable  rates  for  transportation,  and  that  there  was  such 

sion  of  this  subject  see  sees.  125  and        »  160  U.  S.  1,  c.  331,  41  L.  Ed.  1025- 
126,  infra.  Sec.  1  of  Interstate  Commerce  Act. 


13S  FEDERAL    CONTROL    OF    STATE    REGULATION.       [§§  100,  101. 

an  infinite  variety  of  facts  entering  into  the  question  of  what 
is  a  reasonable  rate,  no  matter  what  standard  is  adopted,  that 
the  individual  shipper  would  be  practically  remedyiess.  It  is 
also  true  that  the  complexity  of  the  problem  requires  for  its 
solution  the  largest  experience,  and  the  fullest  knowledge  of 
the  details  of  the  cost  of  service,  and  all  the  conditions  of 
traffic."1 

^  100.  Protection  of  the  carrier  against  discriminating 
state  legislation. —  The  Fourteenth  Amendment  protects  the 
carrier  not  only  against  unreasonable  state  limitation  of  rates, 
but  aiso  against  any  state  legislation  which  unreasonably  in- 
terferes with  the  carrier's  right  to  carry  on  and  manage  its 
concerns.  This  federal  guaranty  may  be  invoked  irrespective 
of  whether  there  is  any  contract  between  the  state  and  the  com- 
pany exempting  it  in  any  measure  from  state  control.  While 
the  carrier  is  subject  to  the  general  police  power  of  the  state 
in  the  general  conduct  of  its  affairs,  the  running  of  its  trains 
and  providing  for  the  proper  accommodation  of  the  public,  it 
cannot  be  subjected  to  discriminating  or  class  legislation. 
Thus,  a  statute  of  Michigan  which  provided  that  the  railroads 
should  keep  for  sale  one-thousand  mile  tickets  good  for  two 
years  at  a  reduced  rate,  such  ticket  to  be  issued  in  the  name  of 
the  purchaser's  wife  and  children  when  desired,  and  redeem- 
able by  the  company  if  not  used,  was  held  violative  of  due 
process  of  law  and  the  equal  protection  of  the  laws.  The  Court 
said  that  such  legislation  was  not  included  in  the  power  to  fix 
maximum  rates  and  that  the  company  had  the  right  to  insist 
that  all  persons  should  be  compelled  to  pay  alike  and  that  no 
discrimination  against  it  in  favor  of  certain  classes  of  married 
men  with  families,  excursionists  or  others  should  be  made  by 
the  legislature.2 

i"The   rates  of  freight  must  be  rail  and  water  lines,  by  competition 

sufficiently  low  to  result  in  the  de-  between  markets,  by  competition  of 

velopinent  of  the  largest  amount  of  products  with  products,  by  the  value 

traffic,  and  at  the  same  time  they  of  the  articles  of  freight  at  the  places 

must  be  high  enough  to  produce  suffi-  of  production  and  manufacture,  and 

cient  reveuue  to  pay  for  the  cost  of  the  places  of  consumption,  by  other 

maintenance  and  operation    of  the  circumstances  and  conditions."  Fink 

roads  and  if  possible,  interest  on  the  on  Railway  Rates, 

investment.     The  rates  must   in    no  -'Lake  Shore  &  M.   So.   R.   Co.  v. 

exceed  the  value  to  the  public  Smith    173  tj.   s.   684  (1899),  43  L. 

of  the  services  rendered,  which  is  de-  _,  n__     _,             ..        ..        ,. 

termined  by  tin-  commercial  laws  by  Ed.  808.     Three  justices  dissenting, 
'•ompetition  with  all  rail  lines,  with 


§   101.]  FEDERAL    CONTROL    OF    STATE    REGULATION.  139 

§  101.     Extent  of  the  state  power  of  regulation. —  The 

power  of  the  state  in  its  control  of  domestic  commerce  when 
unincumbered  by  contracts  to  fix  maximum  rates  subject  to- 
the  judicial  determination  of  their  reasonableness,  also  includes 
the  power  to  make  any  reasonable  regulations  for  the  conduct 
of  the  carriers'  business  subject  to  the  judicial  determination 
of  what  is  reasonable.  Thus  discriminations  may  be  prohib- 
ited, the  requirement  of  facilities  for  the  transfer  of  freight  by 
direct  connection  at  the  intersection  of  railroads  may  be  re- 
quired,1 and  the  reasonableness  of  contracts  of  the  carriers, 
whether  such  contracts  be  made  directly  with  the  patrons  of 
the  road  or  for  a  general  arrangement  between  railroads  in 
the  transportation  of  persons  and  property,  are  properly  sub- 
ject to  state  control.2  The  consolidation  of  parallel  or  com- 
peting lines  of  railway  may  be  prohibited.3 

While  a  charter  contract  not  containing  a  reservation  on 
the  part  of  the  state  of  the  right  to  alter  or  amend  is  protected 
by  the  federal  constitution  against  impairment  by  subsequent 
legislation,  the  right  may  be  reserved  by  the  state  to  alter, 
amend  or  repeal  the  charter  contract.  In  such  cases  the  rights 
vested  in  the  corporation  by  the  terms  of  the  charter  contract 
may  be  modified  by  subsequent  legislation,  though  this  right 
of  impairment  or  annulment  does  not  extend  to  vested  rights 
in  property  or  contract  acquired  by  user  of  corporate  powers 
and  franchises.  Thus,  where  by  a  railroad  charter  the  general 
power  is  given  to  consolidate  with,  purchase,  lease  or  acquire 
the  stock  of  other  roads,  which  had  remained  unexecuted,  the 
legislature  may  declare  by  subsequent  acts  that  this  power 
shall  not  extend  to  the  purchase,  lease  or  consolidation  with 
parallel  or  competing  lines.4 

"Where  a  railroad  corporation  is  organized  under  state  law 
by  the  purchasers  of  the  property  of  a  railroad  corporation  at 
foreclosure  sale,  there  is  no  contract  right  created  protected  by 
the  federal  constitution  against  the  enforcement  of  subsequent 
statutory  regulations  respecting  railroad  rates  existing  when 

i  Atchison,  etc  R.  Co.  v.   Denver.  Minnesota,  186  U.  S.  257  (1902),  45  L. 

etc.  R.   Co.   110  U.  S.  667  (1884).  28  Ed.  1151,  supra. 

L.  Ed.  281;  Wisconsin,  etc.  R.  Co.  v.  3  Louisville  &  Nashville  R.  Co.  v. 

Jacobson,  179  U.  S.  287  (1900),   45  L.  Kentucky,  161  U.  S.  677  (1896),  40  L. 

Ed.  194.  Ed.  849. 

^  Minneapolis  &  St.  Louis  R.  Co.  v.  *  Piersall  v.  Great  Northern  R.  Co., 

161  U.  S.  646  (1896),  40  L.  Ed.  838. 


14:0  FEDERAL    CONTROL    OF    STATE    REGULATION.  [§    102. 

the  new  company  was  incorporated,  though  not  in  force  when 
the  mortgage  was  executed,  and  the  railroad  company,  by  in- 
corporating under  a  general  law  of  the  state,  is  estopped  to 
contest  the  validity  under  the  federal  constitution  of  the  pro- 
visions of  an,  act  regulating  railroad  rates,  which  form  one  of 
the  burdens  imposed  by  the  state  as  a  condition  of  becoming 
an  incorporated  body.1 

It  is  the  proper  duty  of  a  railroad  company  to  establish  sta- 
tions at  proper  places  on  its  line,  and  it  is  therefore  within  the 
power  of  a  state  to  make  it  the  prima  facie  duty  of  the  com- 
pany to  establish  stations  at  all  villages  and  boroughs  on  their 
respective  lines.  A  state  statute  requiring  such  erection  of 
stations  by  railroad  companies  on  the  order  of  the  state  rail- 
way and  warehouse  commission,  the  burden  being  imposed 
upon  the  company  of  meeting  the  presumption  that  the  order 
of  the  commission  is  correct,  does  not  amount  to  an  invasion 
of  the  rights  of  private  property  and  is  not  repugnant  to  the 
constitution  of  the  United  States.2 

§  102.  The  state  Anti-Trust  Laws  and  the  Fourteenth 
Amendment.— Many  of  the  states  have  enacted  anti-trust 
laws  prohibiting  contracts  and  combinations  in  restraint  of 
competition,  and  such  statutes  are  within  the  constitutional 
power  of  the  state  when  not  violative  of  the  federal  guarantees 
of  due  process  of  law  and  the  equal  protection  of  the  laws, 
or  other  constitutional  guaranties. 

The  extent  of  the  state  power  in  the  enactment  of  such 
statutes  is  illustrated  in  the  recent  decision  of  the  Supreme 
Conrt,8  holding  that  a  statute  of  Wisconsin  which  punished 
combining  for  the  purpose  of  wilfully  or  maliciously  injuring 
another  in  his  business,  and  construed  by  the  supreme  court 
of  the  state  as  requiring  malicious,  as  distinguished  from 
mere  wilful  injury,  was  not  violative  of  the  lawful  right  to 
contract  protected  by  the  Fourteenth  Amendment.  The 
court  said  that  malicious  mischief  was  a  proper  subject  for 
legislative  repression,  and  still  more   were  combinations    for 

i Grand  Rapids  &  Indiana  R.  Co.  -Minneapolis,  etc.  R.  Co.  v.  Minne- 

v.  Osborne,  193  U.  S.    17,   48  L.   Ed.  sota,  193  U.  S.  53(1904),  48  L.  Ed.  614. 

598    1904).     See  also  People  of  New  3  Aikens  v.  Wisconsin,  25  Sup.  Ct. 

York  v.  Cook,  148  U.  S.  397,  37  L.  Ed.  Rep.  3;   Smiley  v.  Kansas,  U.  S.  Sup. 

198    L892).  Ct.  Feb.,  1905. 


§  102.]  FEDERAL    CONTROL    OF    STATE    REGULATION.  141 

the  purpose  of  inflicting  it,  and  that  it  would  be  impossible  to 
hold  that  the  liberty  to  combine  to  inflict  such  mischief,  even 
upon  such  intangibles  as  business  or  reputation,  was  among 
the  rights  which  the  Fourteenth  Amendment  was  intended  to 
preserve.1  The  court  did  not  decide  what  would  be  the  force 
of  the  constitutional  objection  if  the  statute  was  construed  to 
embrace  combining  as  to  effect  wilful,  as  distinguished  from 
malicious,  injury. 

The  Texas  Anti-Trust  Law,  which  provided  that  persons 
out  of  the  state  could  be  liable  for  indictment  and  conviction 
for  committing  any  of  the  offenses  enumerated  in  the  act, 
which  did  not  in  their  commission  necessarily  require  a  per- 
sonal presence  in  the  state,  the  object  being  to  reach  and  pun- 
ish all  persons  offending  against  the  provisions  of  the  act, 
whether  within  or  without  the  state,  was  held  by  the  United 
States  Circuit  Court  to  be  an  attempt  to  give  the  laws  of  the 
state  an  extra-territorial  force,  and  therefore  void.2 

Such  a  law  is  also  invalid  when  it  attempts  to  exempt  a 
certain  class  of  the  community,  such  exemption  being  on  no 
reasonable  basis  of  classification.  Thus,  the  Anti-Trust  Law 
of  Illinois  was  held  invalid  on  the  ground  that  agricultural 
products  or  live  stock  in  the  hands  of  the  producer  or  raiser 
are  exempted  from  the  operation  of  the  statute,  which  pro- 
hibited the  recovery  of  the  price  of  the  article  sold  by  any 
trust  or  combination  if  in  restraint  of  trade  or  commerce  in 
violation  of  the  act.  The  Supreme  Court  said  that  this  dis- 
crimination was  a  denial  of  "the  equal  protection  of  the  laws.3 
The  Court  said  that  such  a  statute  was  not  a  legitimate  exer- 
tion of  the  power  of  taxation,  rested  upon  no  reasonable 
basis,  was  plainly  arbitrary  and  clearly  denied  the  equal  pro- 
tection of  the  laws  to  those  against  whom  it  discriminated,  as 
this  exemption  was  such  a  material  feature  of  the  law  that 
presumably  it  would  not  have  been  enacted  without  it,  the 
whole  law  was  held  void. 

iThe  conviction  affirmed  in  this  crease,  but  to  permit  those  to  adver- 
case  was  that  of  certain  newspaper  tise  in  their  papers  at  the  old  rate 
managers  who,  it  was  alleged,  had  who  should  refuse  to  pay  their  rival 
combined   to   maliciously  injure    a    ^ne  new  rate. 

rival  paper   by  agreeing   to  refuse        "'In  re  Grice,  (No.  Dist.  of  Texas), 
space  to  advertisers  who  should  pay     "9  Fed.  ^eP-  627  (1897). 
the   increased  rates   fixed  by  such        3  Connolly   v.    Union   Sewer   Pipe 
rival,  except  at  a  corresponding  in-     Co.  184  U.  S.  540  (1902),  46  L.  Ed.  G79. 


14:2  FEDERAL    CONTROL    OF    STATE    REGULATION.  [§   103. 

The  exemption  in  the  Texas  Anti-Trust  Law  of  agricultural 
products  and  live  stock  in  the  hands  of  producers  and  raisers 
was  also  held  void.1 

§  10:}.  Classification  of  state  railroad  legislation. — "Where 
classification  is  reasonable,  that  is,  based  upon  legitimate  con- 
siderations of  public  policy,  it  is  valid,  as  legislation  must 
necessarily  be  specialized  in  its  adaptation  to  the   subjects  of 

s  slation.  The  question  is  thus  left  open  for  determination 
in  every  case  of  classification  for  legislation,  whether  the  dis- 
crimination is  natural  and  reasonable  or  arbitrary  and  oppres- 
sive, and  therefore  a  denial  of  the  equal  protection  of  the  laws 
guaranteed  by  the  Fourteenth  Amendment. 

The  difficulty  of  determining  these  questions  of  classifica- 
tion was  illustrated  in  the  division  of  the  Court  in  two  recent 
cases.  In  one  the  Court  held  invalid  a  statute  of  Texas  which 
required  railroad  companies  in  all  cases  of  claims  under  $50 
to  pay  an  attorney's  fee  not  exceeding  810  to  the  party  suc- 
cessfully suing,  provided  the  suit  was  brought  thirty  days 
after  the  refusal  of  the  company  to  pay  the  claim.2  The 
court  said  that  this  was  an  arbitrary  selection  which  could 
not  be  justified  by  calling  it  classification.  In  the  other  case 
a  Kansas  statute  providing  that  in  all  actions  brought  for 
damages  caused  by  fire  from  the  operation  of  the  railroad 
the  court  should  allow  the  plaintiff  on  recovery  a  reasonable 
attorney's  fee,  which  should  become  part  of  the  judgment, 
wis  sustained,3  the  opinion  of  the  court  being  rendered  by  the 
same  judge,  Justice  Brewer,  in  both  cases.  It  was  said  in  the 
latter  case  that  while  the  principles  of  separation  between  the 
el  asses  were  not  difficult,  yet  their  application  often  became 
very  troublesome,  especially  when  the  case  was  near  the  divid- 

*In  re  Grice,  siqira.  state  by  permission  were "entitled  to 

In   Niagara  Falls  Fire  Ins.  Co.  v.  envoke  the  protection  of  the  federal 

ill,  IK)  Fed.  Rep.  816  (1901),  the  law  and   challenge   the  validity  of 

circuit  court  of  Nebraska  held  the  statutes  which  affected  their   busi- 

anti-trust  law  of  that  state  void  on  ness,  equally  with  state  companies. 

account  of  its  exemption   of  assein-  -Railroad  Co.    v.    Ellis,    165  U.  S. 

blies  and  associations  "of  working-  150,41   L.  Ed.  667,  three  judges  dis- 

men"and   reserving  to   them    "all  senting. 

their  rights  and  privileges  now  ac-  3  A.  T.  &  S.  F.  R.  Co.  v.  Matthews, 

corded  to  them  by  law."    This  case  171  U.  S.  96,43  L.  Ed.  909,  four  judges 

also    held     that    foreign    insurance  dissenting. 

companies    doing    business    in    the 


§  103.]  FEDERAL    CONTROL    OF    STATE    REGULATION.  143 

ing  line.  "It  is  easy  to  distinguish,"  said  the  Court,  "between 
the  full  light  of  day  and  the  darkness  of  midnight,  but  often 
very  difficult  to  determine  whether  the  given  moment  in  the 
twilight  hour  is  before  or  after  that  in  which  the  light  pre- 
dominates over  the  darkness." 

The  statute  of  Kansas  regulating  charges  in  public  stock- 
yards and  applying  only  to  one  corporation  and  not  to  other 
companies  or  corporations  engaged  in  like  business,  was  held 
to  den}T  the  equal  protection  of  the  laws.1 

A  law  of  Texas  directed  solel^v  against  railroad  companies 
and  imposing  a  penalty  for  permitting  Johnson  grass  or  Rus- 
sian thistle  upon  their  roadway  was  sustained,2  the  Court  say- 
ing: "Great  constitutional  provisions  must  be  administered 
with  caution.  Some  play  must  be  allowed  for  the  joints  of 
the  machine,  and  it  must  be  remembered  that  the  legislatures 
are  the  ultimate  guardians  of  the  liberties  <$f  the  people  in 
quite  as  great  a  degree  as  the  courts." 

A  law  of  Iowa  excepting  "sales  by  jobbers  and  wholesalers 
in  doing  an  interstate  business  with  customers  outside  of  the 
state"  from  a  license  tax  imposed  upon  dealers  in  cigarettes, 
was  sustained,3  the  Court  saying  that  there  was  a  clear  dis- 
tinction in  occupations  warranting  the  classification. 

iCotting   v.    Kansas    City    Stock-  cision  of  Supreme  Court  of  United 

yards  Co.,  183  U.  S.  79,  46  L.  Ed  92.  States  on  Wisconsin  Anti-Trust  Law, 

-Missouri,  Kansas  &  Texas  R.  Co.  November  4,  1904,  195  U.  S.  194. 

v.  May,  194  U.  S.  267  (1904),  48  L.  Ed.  3  Cook   v.   County  of  Marshall,  — 

971,  two  judges  dissenting.     See  de-  U.  S.  Sup.  Ct.  Rep.,  January  16, 1905. 


PART  II. 

INTERSTATE  COMMERCE  ACT. 
Section  1. 

Page 
§  104.     See.  1.  The  act  to  regulate  commerce 146 

105.  All  of  interstate  commerce  not  included 140 

106.  Parties  subject  to  the  act 147 

107.  Express  companies 148 

108.  Under  common  control,  management  or  arrangement  for  a  con- 

tinuous carriage ■ 149 

109.  Transportation  through  a  state 150 

110.  Interstate  electric  railroads 150 

111.  Receivers,  lessees  and  purchasers,  pendente  lite 151 

112.  Foreign  commerce 151 

113.  Place  of  incorporation  of  the  carrier  immaterial 152 

114.  The  intention  of  interstate  shipment  not  sufficient  15'-' 

115.  All  instrumentalities  of  shipment  or  carriage 153 

116.  Delivery,  cartage  and  storage  charges 153 

117.  Carriage  of  live  stock  and  perishable  property 155 

118.  Refrigeration  in  transit 156 

119.  Charges  must  be  reasonable  and  just 158 

120.  Practical  difficulties  in  the  enforcement  of  reasonableness  in 

rates l-'9 

121.  Standard  of  reasonableness  under  state  statutes 160 

122.  Standard  of  reasonableness  under  the  act 160 

123.  The  Commission  has  no  power  to  fix  rates 161 

124.  No  power  in  the  courts  to  fix  rates 162 

125.  The  Federal  Courts  on  reasonableness  in  railroad  rates 163 

126.  The  capitalization  of  railroads  as  a  basis  of  rates 164 

127.  Through  rates  and  local  rates 165 

128.  The  Commission  on  through  and  local  rates 167 

129.  Responsibility  for  through  rates  169 

130.  Reasonableness  under  sections  1  and  3  170 

131.  Consideration  of  reasonableness  in  the  courts 170 

132.  Rulings  of  the  Commission  upon  the  reasonableness  of  rates. .  171 

133.  The  burden  of  proof  before  the  Commission 172 

134.  Presumption  of  reasonableness  from  established  rates 172 

135.  The  Commission  on  cost  of  service  and  needs  of  the  shipper. . .  173 

136.  The  Commission  on  the  character  of  the  traffic ...  174r 

137.  The  Commission  on  distance  as  a  factor  in  rates 174 

138.  The  Commission  on  comparison  of  rates 175 

139.  Relation  to  state  local  rates 176 

140.  Reasonableness  aud  proportion 176 

141.  The  Commission  on  rate  wars  and  reasonableness  of  rates 177 

142.  Illustrative  cases  upon  specific  rates 178 

10 


146  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

§  104.  The  act  to  regulate  commerce. —  Be  it  enacted  by 
th.  s,  nate  and  House  of  Represt  ntatives  of  the  United  states  of 
America  in  Congress  assembled:  Sec.  1.  That  the  provisions  of 
this  act  shall  apply  to  any  common  carrier  or  carriers  engaged  in 
the  transportation  of  passengers  or  property  wholly  by  railroad, 
or  partly  by  railroad  and  partly  by  water  when  both  are  used, 
under  a  common  control,  management,  or  arrangement,  for  a 
continuous  carriage  or  shipment,  from  one  state  or  territory  of 
the  United  States,  or  the  District  of  Columbia,  to  any  other 
state  or  territory  of  the  United  States,  or  the  District  of  Colum- 
bia, or  from  any  place  in  the  United  States  to  an  adjacent  for- 
eign country,  or  from  any  place  in  the  United  States  through 
a  foreign  country  to  any  other  place  in  the  United  States,  and 
also  to  the  transportation  in  like  manner  of  property  shipped 
from  any  place  in  the  United  States  to  a  foreign  country  and 
carried  from  such  place  to  a  port  of  trans-shipment,  or  shipped 
from  a  foreign  country  to  any  place  in  the  United  States  and 
carried  to  such  place  from  a  port  of  entry  either  in  the  United 
States  or  an  adjacent  foreign  country:  Provided,  howt  ver,  That 
the  provisions  of  this  act  shall  not  apply  to  the  transportation 
of  passengers  or  property,  or  to  the  receiving,  delivering,  stor- 
age, or  handling  of  the  property,  wholly  within  one  state,  and 
not  shipped  to  or  from  a  foreign  country  from  or  to  any  state 
or  territory  as  aforesaid. 

The  terra  " railroad  "  as  used  in  this  act  shall  include  all 
bridges  and  ferries  used  or  operated  in  connection  with  any 
railroad,  and  also  all  the  road  in  use  by  any  corporation  oper- 
ating a  railroad,  whether  owned  or  operated  under  a  contract, 
agreement,  or  lease;  and  the  term  "  transportation  "  shall  in- 
clude ali  instrumentalities  of  shipment  or  carriage. 

All  charges  made  for  any  service  rendered  or  to  be  rendered 
in  the  transportation  of  passengers  or  property  as  aforesaid,  or 
in  connection  therewith,  or  for  the  receiving,  delivering,  stor- 
age,  or  handling  of  such  property,  shall  be  reasonable  and  just; 
and  every  unjust  and  unreasonable  charge  for  such  service  is 
prohibited  and  declared  to  be  unlawful. 

§  105.  All  of.  interstate  commerce  not  included.— The 
definition  in  this  section  of  the  carriers  subject  to  the  act  does 
not  include  all  the  carriers  engaged  in  interstate  commerce, 
but  only  those  engaged  in  the  transportation  of  persons  or 
property  wholly  by  railroad,  or  partly  by  railroad  and  partly 
by  water,  or  both,  are  used.  That  is,  it  does  not  include  trans- 
portation wholly  by  water,  nor  does  it  include  transportation 
by  team  or  wagon.  (See  7  I.  C.  C.  E.  2Sty.  Congress  had 
repeatedly  legislated  with  reference  to  water  transportation, 
but  its  attention  in  this  enactment  was  directed  only  to  the 
abuses  in  railroad  transportation. 


$   107.]  INTERSTATE    COMMERCE    ACT.  147 

A  steamboat  on  a  navigable  river  can  only  demand  of  a  rail- 
road connecting  with  river  points  that  it  receive  and  deliver 
freight  at  the  published  local  rates,  as  an  independent  water 
line  is  not  included,  in  the  act.  (See  4  I.  C.  C.  R.  265,  and  3 
Int.  Com.  Rep.  2TS). 

The  decisions  of  the  courts  on  this  question  have  been  in  ac- 
cord with  the  rulings  of  the  Commission.  A  railroad  lying 
wholly  within  a  state  which  transports  freight,  whether  com- 
ing from  within  or  without  the  state,  solely  on  local  bills  of 
lading  on  a  special  contract  limited  to  its  own  lines,  and  with- 
out dividing  charges  with  any  other  carriers  or  assuming  any 
obligations  to  or  for  them,  does  not  come  within  the  provisions 
of  the  act  and  is  not  bound  to  make  any  reports  of  its  business 
to  the  Commission.  United  States  v.  Railroad  Co.,  SI  Fed.  .Rep. 
783,  following  C.  K  O.  &  T.  P  R.  Co.  v.  Commission,  162  U. 
S.  184,  40  L.  Ed.  935,  and  Commission  v.  B.  X.  &  C.  R.  Co.,  77 
Fed.  Rep.  942.  See  also  U.  S.  v.  Geddes  (6th  Cir.  C.  C.  A.), 
131  Fed.  Rep.  452,  where  the  same  ruling  was  made  as  to  rail- 
roads subject  to  the  Safety  Act. 

§  106.  Parties  subject  to  the  act. —  The  only  parties  sub- 
ject to  the  act,  that  is,  to  the  jurisdiction  of  the  Commission, 
are  the  common  carriers  described  in  this  section,  that  is,  those 
carriers  engaged  in  the  transportation  of  persons  or  property 
as  described  in  the  section.  The  Commission  has  no  jurisdic- 
tion, under  this  section,  over  parties  other  than  the  carriers 
and  those  who  invoke  its  jurisdiction  against  the  carriers. 
Thus  it  had  no  jurisdiction  under  this  section  over  the  owners 
of  private  cars  whose  charges  to  the  carriers  may  materially 
affect  the  rates  charged  to  the  shipper.  In  this  connection, 
however,  should  be  considered  section  2  of  the  amendatory 
act  of  February  19,  1903,  infra,  §  311,  which  specifically  pro- 
vides that  in  any  proceeding  instituted  before  the  Commission 
or  in  the  courts,  it  shall  be  lawful  to  include  as  parties  in  ad 
dition  to  the  carrier  all  parties  interested  in  or  affected  by  the 
rule,  regulation  or  practice  under  consideration,  and  that  in- 
quiries, investigations,  orders  and  decrees  may  be  made  with 
reference  to  and  against  such  parties  in  the  same  manner,  to 
the  same  effect  and  subject  to  the  same  conditions  as  are  or 
shall  be  authorized  by  law  with  respect  to  carriers.  This 
amendatory  act  has  not  yet  been  judicially  construed,  though 


148  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

it  has  been  considered  by  the  commission  in  several  cases,  with 
reference  to  sections  2  and  6  of  the  act.  See  infra,  §§  146- 
L67,  233.  It  would  seem  that  under  this  amendatory  act  the 
owners  of  private  cars  or  others  whose  charges  directly  affect 
the  charge  of  the  carrier  to  the  shipper  would  be  subject  to 
the  jurisdiction  of  the  act. 

This  section  in  declaring  who  are  subject  to  the  act  does  not 
in  express  terms  include  carriers  making  shipments  within  << 
a  rritory,  that  is,  from  one  point  in  a  territory  to  another. 
The  power  of  congress  over  the  territories  is  general  and 
plenary,  combining  the  powers  of  the  state  and  federal  gov- 
ernments, under  the  express  power  to  make  all  needful  rules 
and  regulations  respecting  the  territory  of  the  United  States. 
Constitution,  article  IV,  section  3.  See  Mormon  Church  v. 
United  States,  13G  U.  S.  1,  34  L.  Ed.  481.  This  power  over 
the  commerce  within  a  territory,  it  will  be  seen,  was  exercised 
in  the  Anti-Trust  Act,  infra,  §  329.  The  question  of  the  appli- 
cation of  the  Interstate  Commerce  Act  to  traffic  shipments 
entirely  within  a  territory  was  suggested  in  the  recent  report 
of  the  Commission  in  the  matter  of  the  Atchison,  T.  &  S.  F. 
R  Co.,  10  I.  C.  C.  R.  4S0. 

§10?.  Express  companies. —  The  Commission  ruled  soon 
after  its  organization  that  independent  express  companies  were 
not  included  in  the  act.  See  1  I.  C.  C.  R.  349  and  1  Int.  Com. 
Rep.  677.  This  ruling  was  adopted  by  the  United  States  cir- 
cuit court  of  Missouri  in  United  States  v.  Morsman,  42  Fed. 
Rep.  44S,  where  the  court  quashed  an  indictment  against  a 
party  for  alleged  violation  of  the  act  in  acting  as  agent  for  an 
express  company,  as  the  indictment  did  not  allege  that  the  ex- 
press company  was  a  mere  adjunct  of  a  railroad  company  or  a 
combination  of  railroad  companies.  See  also  Southern  In- 
diana Express  Co.  v.  United  States  Express  Co.,  35  C.  C.  A.  172 
and  92  Fed.  Rep.  1022,  affirming  88  Fed.  Rep.  659. 

Before  the  passage  of  the  Interstate  Commerce  Act  of.  1886, 
the  Supreme  Court  in  the  Express  Company  cases,  117  U.  S.  1, 
29  L.  Ed.  791,  had  decided  that  railroad  companies  were  not 
required  by  usage  or  the  common  law  to  transport  express 
traffic  for  the  independent  companies  over  their  lines,  and 
that  they  were  not  obliged  to  do  more  as  express  carriers  than 
to  provide  the  public  at  large  with  reasonable  accommodations, 


§  108.]  INTERSTATE    COMMERCE    ACT.  140 

and  in  the  absence  of  a  statute,  they  were  not  obliged  to  furnish 
equal  facilities  to  all  express  companies.  The  regulation  of 
such  matters,  said  the  court,  was  legislative  and  not  judicial. 

§108.  Under  common  control,  management  or  arrange- 
ment for  a  continuous  carriage. —  The  rulings  of  the  Com  mis- 
sion as  to  what  constitutes  a  common  control,  management  or  ar- 
rangement for  a  continuous  carriage  have  been  affirmed  by  the 
courts.  The  test  of  subjection  to  the  act  is  through  routing  in 
interstate  commerce.  When  a  carrier  unites  with  one  or 
others  in  making  a  rate  for  interstate  traffic  and  a  through  bill 
is  issued  therefor,  it  is  subject  to  the  act.  In  C,  X.  O.  &  T. 
P.  R.  Co.  v.  Commission,  162  U.  S.  181,  10  L.  Ed.  935,  the  Su- 
preme Court  held  that  a  railroad  company  whose  road  was 
wholly  within  the  bounds  of  a  single  state  which  had  volun- 
tarily engaged  as  a  common  carrier  in  interstate  commerce  by 
making  an  arrangement  for  the  continuous  carraige  of  goods 
through  another  state,  was  subject  as  to  such  traffic  to  the  pro- 
visions of  the  act.  An  express  agreement  for  a  through  rate 
is  not  required,  but  the  successive  receipt  and  forwarding  in 
the  ordinary  course  of  business  by  two  or  more  carriers  in 
interstate  traffic  under  through  bills,  or  any  arrangement  for  a 
continuous  carriage  over  their  lines,  constitutes  assent  to  such 
common  arrangement  for  the  carriage  with  the  meaning  of  the 
act. 

When  there  is  a  through  bill  of  lading  for  a  continuous  car- 
riage, it  is  immaterial  that  one  of  the  roads  party  to  the 
through  bill  received  the  sole  benefit  of  the  rate  on  its  own  line. 
Such  a  case  was  presented  to  the  Supreme  Court  in  L.  &  X.  R. 
Co.  v.Behlmer,  175  U.  S.  61S,  U  L.  Ed.  309,  where  the  court 
said  that  the  contention  under  this  state  of  facts  that  the  car- 
riers did  not  constitute  a  continuous  line  bringing  them  within 
the  control  of  the  act  to  regulate  commerce  was  no  louger 
open  to  controversy  in  that  court.  See  also  United  States  v. 
Seaboard  Railway  Co.,  S2  Fed.  Rep.  563, 

A  local  switching  company  is  not  subject  to  the  act  where 
it  makes  no  contracts  of  through  shipment,  but  imposes  a  sep- 
arate trackage  charge  upon  the  other  companies  for  the  use  of 
its  tracks  in  local  transportation.  But  where  such  a  company 
does  become  a  party  to  such  a  contract  for  through  shipment, 
it  becomes  as  to  such  business  subject  to  the  act.     See  C,  M. 


150  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

&  St.  P.  R.  Co.  v.  Becker,  32  Fed.  Eep.  849.  As  to  the  evi- 
dencing of  contracts  for  through  shipments,  see  the  ruling  of 
the  Commission  in  2  I.  C.  C.  R  553,  and  2  Int.  Com.  Eep.  393. 
Through  routing  by  arrangement  for  continuous  interstate 
traffic  is  a  matter  of  contract  between  the  carriers,  and  there 
is  no  provision  for  either  the  courts  or  the  Commission  enforc- 
ing the  making  of  such  contracts;  3  I.  C.  C.  R  592  and  2  Int. 
( Vim.  Rep.  80G.  See  infra,  section  3,  "  Interchange  of  Facilities." 

§109  Transportation  through  a  state.  —  Commerce  be- 
tween points  in  the  same  state,  but  which,  in  the  being  car- 
ried  from  one  point  to  another  is  carried  through  another 
state,  is  interstate  commerce  and  subject  to  the  act.  This 
was  definitely  determined  by  the  supreme  court  in  Hanley 
v.  Kansas  City  Southern  Kail  way  Co.,  187  U.  S,  617,  47  L. 
Ed.  333  decided  January  1903,  where  the  court  affirmed  the 
judgment  of  the  circuit  court  of  Arkansas  enjoining  the  rail- 
road commissioners  of  Arkansas  from  fixing  and  enforcing 
rates  upon  that  part  of  the  route  within  the  state  of  Arkansas 
of  a  shipment  beginning  and  ending  in  the  state  of  Arkansas. 

The  court  held  that  there  could  be  but  one  rate  fixed  by  one 
authority  and  that  the  case  was  analogous  to  that  of  navigat- 
ion on  the  high  seas  between  ports  of  the  same  state.  The 
court  distinguished  this  case  from  that  of  a  tax  which  was  su- 
stained in  Lehigh  Yalley  Ry.  Co.  Pennsylvania,  145  U.  S.  192. 
3G  L.  Ed.  672  which  was  in  respect  of  the  receipts  of  the  pro- 
portion of  the  transportation  within  the  state.  A  tax  may  be  thus 
apportioned  according  to  mileage,  but  when  a  rate  is  established, 
it  must  be  established  as  a  whole.  This  was  the  view  that 
had  been  sustained  by  the  Commission  in  several  cases,  7  I.  C. 
( '.  II.  92,  and  overrules  United  States  v.  Lehigh  Valley  R  Co., 
li;>  Fed.  Pep.  372,  and  several  state  decisions  which  had  been 
based  upon  the  decision  in  the  Lehigh  Valley  Case. 

i  110.  Interstate  electric  railroads.  —  It  was  ruled  by  the 
( ioramission,  7  I.  C.  C.  R.  83,  though  the  question  does  not  seem 
to  have  been  adjudicated  in  the  courts,  that  a  line  of  electric 
railroad  lying  partly  in  the  District  of  Columbia  and  partly  in 
the  state  of  Maryland,  was  subject  to  the  act,  although  it  was 
constructed  on  public  highways  and  was  essentially  a  suburban 
road  for  the  convenience  of  urban  and  suburban  passengers. 

Two  of  the  Commissioners  dissented  on  the  ground  that  the 


§§    111,   112. J  INTERSTATE    COMMERCE    ACT.  151 

terms  of  the  act  were  not  broad  enough  to  include  street  rail- 
ways. 
§  111.  Receivers,  lessees  and  purchasers  pendente  lite.— 

AVhen  railroad  corporations  are  subject  to  the  act,  their  re- 
ceivers are  also  subject  to  its  prohibitions,  requirements  and 
regulations.  6  I.  G.  C.  E.  1;  61.  C.  C.  R  378;  see  also  Erb  v. 
Morash,  177  U.  S.  584,  44  L.  Ed.  897.  Lessees  of  such  corpora- 
tions and  purchasers  at  foreclosure  sales  are  bound  by  the  orders 
of  the  Commission  made  pending  such  foreclosure.  Interstate 
Commerce  Commission  v.  W.,  N.  Y.  &  P.  R.  Co.,  W.  D.  of  Pa. 
82  Fed.  Rep.  192. 

It  was  ruled  by  the  Commission  in  6  I.  C.  C.  R.  378,  that  a 
railroad  company  subject  to  the  Act,  could  not  by  leasing  its 
road,  free  itself  from  liability  for  practices  made  illegal  by  the 
act,  nor  after  resuming  possession  of  its  property,  pending 
proceedings  against  it  to  enforce  such  statutory  provisions, 
claim  exemption  from  liability  during  the  time  of  the  lease. 

§  112.  Foreign  commerce. —  The  act  includes  traffic  "from 
any  place  in  the  United  States  to  any  adjacent  foreign  coun- 
try," and  "from  any  place  in  the  United  States  "through  a 
foreign  country  to  any  other  place  in  the  United  States,"  and 
also  "  from  any  place  in  the  United  States  to  a  foreign  country 
and  carried  from  such  place  to  a  port  of  trans-shipment,"  or 
"from  a  foreign  country  to  any  place  in  the  United  States  and 
carried  to  such  place  from  a  port  of  entry  either  in  the  United 
States,  or  an  adjacent  foreign  country." 

The  Supreme  Court  said  in  the  Import  Rate  case,  1G2  U.  S. 
197,  40  L.  Ed.  94(>,  after  quoting  this  part  of  the  section. 

"It  would  be  difficult  to  use  language  more  unmistakably 
signifying  that  congress  had  in  view  the  whole  field  of  com- 
merce (excepting  commerce  wholly  within  a  state)  as  well 
that  between  the  states  and  territories  as  that  goin^  to  or 
coming  from  foreign  countries." 

The  jurisdiction  of  the  Commission  extends  to  only  that  part 
of  the  through  import  or  export  rate  which  applies  to  the  in- 
land proportion  received  by  the. carrier.  As  to  effect  of  com- 
petition in  import  and  export  rates  making  dissimilar  circum- 
stances and  conditions  under  sections  3  and  4,  see  p.  217. 
infra.  As  to  publications  of  import  and  export  rates,  see  8  I. 
C.  C.  R.  214:  10  I.  C.  C.  R.  55. 


152  INTEBSTATE    COMMERCE    ACT.  [SECTION    1. 

It  was  contended  in  a  recent  case  before  the  Commission 
( 10  I.  C.  C.  R.  63 ),  that  when  traffic  is  transported  from  a 
point  within  the  United  States  to  a  point  in  a  foreign  country, 
not  adjacent,  upon  a  though  bill  of  lading,  such  transportation 
is  not  within  the  purview  of  the  act.  It  is  true  that  the  sec- 
tion does  not  include  by  any  comprehensive  language  all 
transportation  between  points  in  the  United  States  and  points 
in  foreign  commerce,  but  states  in  detail  what  traffic  is  in- 
cluded. This  contention  would  exclude  from  the  act  the  vast 
volume  of  commerce  with  countries  not  adjacent,  and  the 
Commission  said  that  the  question  was  really  decided  by  the 
Supreme  ( Jourt  in  the  Import  Kate  case  in  the  language  quoted 
above,  though  the  exact  point  was  not  before  the  court,  and 
therefore  held  that  traffic  transferred  from  a  point  within  the 
United  States  to  a  point  in  a  foreign  country  through  a  port 
of  transhipment  is  within  the  first  section. 

§  113.  Place  of  incorporation  of  the  carrier  immater- 
ial.—  The  (  ommission  has  ruled  that  a  foreign  railroad  cor- 
poration such  as  the  Grand  Trunk  Railroad  Company  carrying- 
on  its  traffic  between  the  United  States  and  Canada,  was  sub- 
ject as  to  its  business  in  the  United  States  to  the  same  rules 
and  conditions  as  domestic  carriers.  3  I.  C.  C.  It.  89,  and  2  Int. 
( lorn.  Rep.  497;  4  I.  C.  C.  R.  447,  and  3  Int.  Com.  Rep.  417. 
But  while  a  corporation  engaged  in  interstate  traffic  in  the 
states  is  subject  to  the  act  as  to  such  traffic,  the  jurisdiction  of 
the  Commission  is  necessarily  limited  to  the  United  States  and 
does  not  extend  to  a  question  of  alleged  local  discrimination 
in  a  foreign  country  as  Canada.    10  I.  C.  C.  R.  217. 

§  114.  The  intention  of  interstate  shipment  is  not  suffi- 
cient. Transportation  is  not  made  interstate  and  subject  to 
the  jurisdiction  of  the  Commission  by  the  intention  of  the 
shipper  that  when  the  shipment  is  delivered  by  the  carrier  in 
the  same  state  it  shall  be  furthered  transported  by  another 
carrier  into  another  state,  1  I.  C.  C.  R.  30,  and  1.  Inter.  6,07. 
Thus,  fruit  delivered  to  a  consignee  at  Jersey  City  underrates 
made  to  Jersey  City  on  traffic  originating  in  New  Jersey 
though  destined  for  the  State  of  New  York,  is  not  interstate 
traffic  and  the  Commission  had  no  authority  over  such  freight. 
2  I.  C.  C.  R.  142,  and  2  Int.  Com.  Rep.  84. 

This  was  the   rule   applied    by   the  Supreme  Court  of   the 


$    116.]  INTERSTATE    COMMERCE    ACT.  153 

United  States  in  taxation  cases,  where  it  was  held  that  the 
intent  to  export  is  insufficient  to  exempt  from  the  taxing- 
power  of  the  state.  Coe  v.  Errol,  116  U.  S.  517,  29  L.  Ed. 
715. 

§  115.  All  instrumentalities  of  shipment  or  carriage. — 
The  term  "railroad"  as  used  in  the  act  expressly  includes 
all  bridges  and  ferries  used  and  operated  in  connection  with 
any  railroad.  It  was  held  in  the  first  important  case  arising 
under  the  act  (Kentuck}7  &  Indiana  Bridge  Co.  v.  L.  &  N.  II. 
Co.  37  Fed.  Rep.  567,  Circuit  Court,  Justice  Jackson,  after- 
wards of  the  supreme  bench),  that  this  inclusion  of  bridges 
and  ferries  as  subject  to  the  act  did  not  apply  where  a  bridge 
was  not  operated  by  the  bridge  company,  but  by  railroad 
companies  under  contract  with  the  bridge  company.  In  such 
cases  the  court  said  the  bridge  company  was  not,  either  in  law 
or  fact,  a  common  carrier  within  the  scope  and  meaning  of  the 
section.  The  railroad  company  using  the  bridge,  and  not  the 
bridge  company,  was  the  common  carrier. 

It  was  ruled  by  the  commission  in  1  I.  C.  C.  E.  495,  and  1  Int. 
Com.  Rep.  775,  that  a  railroad  company  chartered  by  the 
state  of  Tennessee,  owning  a  short  road  wholly  in  that  state, 
neither  operating  its  road  nor  owning  any  rolling  stock,  but 
used  and  operated  as  a  means  of  conducting  interstate  traffic 
in  coal  by  the  companies  owning  a  connecting  interstate  road, 
was  one  of  the  instrumentalities  of  interstate  commerce  and 
subject  to  the  act. 

§  116.  Delivery,  cartage,  storage  and  demurrage 
charges. — The  inclusion  in  the  requirement  of  the  reason- 
ableness of  charges  for  the  services  rendered  in  receiving, 
delivering,  storing  and  handling  property  did  not  impose  any 
additional  duty  upon  the  carrier  in  regard  to  the  delivery  or 
storage  of  property,  and  the  carrier  is  not  obliged  under  this 
section  to  deliver  or  store  otherwise  than  is  required  by  its 
common  law  duty  as  a  carrier.  These  services,  including  any 
charges  for  demurrage  and  other  terminal  expenses,  which 
have  been  included  under  the  general  term  of  accessorial  ser- 
vices, are  subject  to  the  act,  whenever  rendered  in  connection 
with  interstate  traffic,  as  to  the  reasonableness  of  the  charges 
under  this  section.  It  also  follows  that  such  services  must  be 
rendered   without  discrimination  as    between   individuals  in 


154:  INTERSTATE    COMMERCE    ACT.  SECTION    1_ 

violation  of  section  2,  and  without  undue  preference  as  be- 
tween localities  or  kinds  of  traffic  under  section  3. 

It  was  said  by  the  Supreme  Court  in  the  Grand  Haven  Cart- 
age case.  Commission  v.  Railroad  Co.  167  U.  S.  633,  1.  c.  645, 
42  L.  Ed.  306,  that  while  cartage  was  not  in  general  a 
terminal  expense  and  not  in  general  assumed  by  the  carrier, 
the  transportation  as  a  rule  being  ended  when  the  freight  was 
received  at  the  warehouse,  that  it  was  a  reasonable  exercise  of 
the  Commission's  power  to  direct  in  a  general  order  that  the 
railroad  companies  should  thereafter  regard  cartage  as  one  of 
the  terminal  charges  to  be  published  in  their  schedules,  as 
required  under  section  6  (As  to  ruling  of  the  commission  there- 
under, see  infra,  sec.  6,  and  note,  and  7  I.  C.  C.  R.  1.  c.  59]  i. 

The  Circuit  Court  of  Appeals,  in  the  same  Grand  Haven  Cart- 
age case,  in  their  opinion,  21  C.  C.  A.  103  and  74  Fed.  Rep. 
v  >3,  which  was  approved  by  the  Supreme  Court,  called  atten- 
tion to  the  distinction  between  the  American  and  English 
customs  of  delivery  of  goods  by  carriers.  Free  cartage  had 
been  developed  in  the  acts  of  the  English  railways  from  their 
competition  with  the  carrier  companies  who  used  their  lines, 
but  that  no  such  conditions  had  been  developed  in  the  growth 
of  our  American  system  of  transportation,  where  it  was  very 
exceptional  for  railroads  to  do  the  carting  required  for  deliver- 
ing and  collecting  the  goods.  The  service  was  essentially  a 
distinct  and  separate  service  from  rail  carriage  and  purely  ac- 
•  ssorial. 

The  fact  that  a  railroad  company'  for  many  yescrs  has  paid 
the  charge  for  hauling:  freight  from  wharves  to  its  station 
does  not  bind  it  to  continue  that  practice,  and,  if  not  bound 
by  contract,  it  may  stop  doing  so  at  any  time.  (1  I.  C.  C.  R. 
In 7.  1.  Int.  Com.  Rep.  303). 

It  was  ruled  by  the  Commission,  8  I.  C.  C.  R.  531,  that  the 
making  of  demurrage  charges  to  commence  before  the  expira- 
ion  of  a  reasonable  time  for  loading  or  unloading  was  a  viola- 
tion of  the  provisions  of  this  section. 

As  to  storage  charges,  it  was  ruled  by  the  Commission,  10  1. 
C.  C.  IJ.  352,  that  a  railroad  freight  depot  and  a  public  ware- 
house are  not  used  for  the  same  purposes,  and  a  charge  for 
storage  in  a  railroad  depot  may  properly  be  made  higher  than 
a  public  warehouse  charge,  with  the  object  of  compelling  the 


§  117.]  INTERSTATE    COMMERCE    ACT.  155 

expeditious  removal  of  the  freight,  without  violation  of  this 
section. 

As  to  storage  of  grain  in  elevators  at  points  of  stoppage  un- 
der milling  in  transit  privileges,  see  10  I.  C.  0.  R.  309. 

§  117.  Carriage  of  live  stock  and  perishable  property.— 
The  character  of  the.  property  may  impose  upon  the  carrier  a 
distinct  obligation  in  the  matter  of  delivery.  Thus  in  the 
case  of  live-stock,  the  company  is  under  a  legal  obligation  to 
provide  suitable  and  necessary  means  and  facilities  for  receiv- 
ing live-stock  offered  for  shipment,  and  this  duty  cannot  be 
efficiently  discharged,  at  least  in  a  town  or  city,  without  the 
aid  of  enclosed  yards  in  which  the  stock  offered  for  shipment 
may  be  handled  with  convenience  and  safety  and  without 
inconvenience  to  the  public.  The  railroad  company  therefore 
cannot,  in  addition  to  the  customary  and  legitimate  charges 
for  the  transportation,  make  a  special  charge  for  merely  re- 
ceiving and  delivering  stock  in  and  through  the  yards  pro- 
vided for  the  purpose.  Covington  Stockyards  Co.  v.  Keith,. 
139  U.  S.  12S,  35  L.  Ed.  73.  The  court  in  this  case  applied 
the  rule  laid  down  in  Northern  Pennsylvania  Railroad  Co. 
v.  Commercial  Xational  Bank  of  Chicago,  123  U.  S.  727,  31  L. 
Ed.  287,  that  the  undertaking  of  a  carrier  to  transport  live- 
stock differed  in  some  respect  from  the  responsibility  assumed 
in  the  cartage  of  ordinary  goods  and  included  the  delivery  of 
such  live-stock,  the  difference  referred  to  growing  out  of  the 
nature  of  the  particular  property  transported. 

A  railroad  carrier  could  make  an  exclusive  contract  with  a 
stock  yards  for  delivery  of  live-stock  provided  no  charge 
was  made  for  delivering  when  taken  b}r  consignee  within  rea- 
sonable time.  Covington  Stock  Yards  v.  Keith, supra;  Butch- 
ers &  Drovers  Stock  Yards  Co.  v.  L.  <fe  N.  R.  Co.,  11  C.  C.  A. 
290,  31  U.  S.  App.  252,  67  Fed.  Rep.  35;  10  I.  C.  C.  R.  173; 
Central  Stock  Yards  v.  L.  &  K  R.  Co.  192  IT.  S.  568,  IS  L. 
Ed.  565.  See,  infra,  section  3.  In  the  case  of  the  Union  Stock 
Yards  of  Chicago  (Commission  v.  C.  B.&  Q.  R.  Co.,  186  U.  S- 
320,  46  L.  Ed.  1182),  the  Supreme  Court  affirmed  the  Circuit 
Court  of  Appeals  (43  C.  C.  A.  209,  and  103  Fed.  Rep.  249), 
in  refusing  to  enforce  an  order  of  the  Commission  holding  un- 
reasonable the  charge  of  $2  for  the  delivery  of  the  livestock 
to  the  stockyards.     It  seems  that  prior  to  1894  no  separate 


156  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

terminal  charge  was  made;  and  the  through  rate  existing 
prior  to  1S94  was  presumed  to  have  provided  compensation  for 
services  for  making  deliveries  to  the  stockyards.  The  court 
said  that  the  defendants  had  the  right  to  divide  their  rates, 
and  that  the  terminal  charge  must  be  separately  considered  as 
a  distinct  charge,  and  if  it  was  reasonable  as  a  separate  charge, 
it  did  not  follow  that  it  should  be  reduced  when  the  through 
rate  was  reduced.  The  court  therefore  affirmed  the  decree  of 
the  Court  of  Appeals  without  prejudice  to  the  Commission's 
right  thereafter  to  commence  proceedings  to  correct  any  un- 
reasonableness in  the  rate  resulting  from  the  additional  termi- 
nal charge  as  to  any  territory.  As  to  reasonable  charges  for 
extra  hazard  to  carrier  in  live-stock  shipments,  see  10  I.  C.  C. 
E.  327. 

A  railroad  company  accustomed  to  deliver  cars  of  cattle  at 
stockyards  off  its  line  by  transporting  them  over  a  line  be- 
longing to  a  stockyards  company,  for  which  it  pays  a  fixed  sum 
per  car,  was  held  in  Walker  v.  Keenan,  19  C.C.  A.  668  and  73 
Fed.  Rep.  7.~>5,  by  the  Circuit  Court  of  the  United  States,  sev- 
enth circuit,  to  be  under  no  obligation  to  consignees  whose 
business  was  located  at  the  stockyards  to  supply  unloading 
facilities  at  its  own  stations  in  a  different  part  of  the  state,  and 
hence  was  not  bound  in  default  thereof  to  deliver  at  the  stock- 
yards without  a  separate  charge.  It  could  on  posting  sched- 
ules to  that  effect,  as  required  by  section  6  of  the  Interstate 
Commerce  Act,  make  a  charge  for  the  freight  to  the  station 
and  a  separate  terminal  charge  of  a  fixed  sum  per  car  for 
delivery  to  the  stockyards.     (Reversing  64  Fed.  Rep.  992.) 

§  118.  Refrigeration  in  transit.— When  carriers  under- 
take the  transportation  of  perishable  traffic  requiring  refriger- 
ation in  transit,  the  providing  of  ice  and  facilities  for  its 
transportation  in  connection  with  the  traffic  are  incidental  to 
the  transportation,  and  the  charge  therefor  is  a  charge  in 
connection  with  the  service  and  subject  to  the  requirement  of 
reasonableness  contained  in  this  section.  This  was  ruled  by 
the  Commission  in  a  case  of  a  shipment  of  strawberries  and 
vegetables  from  Charleston  to  Jersey  City.  6  I.  C.  C.  R.  295. 
Adequate  refrigeration  was  held  to  be  an  incidentof  seaworth- 
iness under  a  bill  of  lading  for  ocean  transportation  of 
dressed  beef.  See  Martin  v.  South wark,  191  U.  S.  1,  48  L.  Ed. 
65  l  L904). 


§   118.]  INTERSTATE    COMMERCE    ACT.  1  .">  | 

The  Commission  has  considered  the  question  of  the  reason- 
ableness of  charges  for  refrigerator  car  service  in  recent  cases. 
Thus  the  charges  for  refrigerator  cars  furnished  by  the 
Armour  car  line  for  freight  traffic  from  points  in  Michigan 
were  considered  in  10  I.  C.  C.  R  360,  and  the  complaint  of  the 
Georgia  fruit  growers  for  alleged  unreasonableness  of  charges 
for  refrigerator  car  service  in  the  transportation  of  peaches 
from  Georgia  to  the  north  was  investigated  in  10  I.  C  C.  H. 
255.  The  ( 'ommission  ruled  in  these  cases  that  the  carrier  was 
bound  to  furnish  such  cars  by  reason  of  their  common  law- 
duty  as  carriers,  but  that  they  could  provide  such  cars  by  pur- 
chase or  by  lease,  and  if  by  lease  the  lease  could  be  made 
with  one  company.  The  Commission  ruled,  however,  that 
the  charges  for  refrigeration,  however  furnished,  should  be 
published  as  other  charges  and  adhered  to  as  other  charges  for 
transportation,  and  in  the  transportation  of  the  freight  the 
carrier  must  either  furnish  the  ice  for  a  reasonable  price,  or 
permit  the  shipper  to  do  so. 

In  the  Michigan  case  the  Commission  found  that  the  charges 
for  the  leased  cars  were  excessive  and  that  the  carriers  by 
making  these  exclusive  contracts  with  the  owners  of  the  cars, 
had  in  effect  imposed  upon  the  shippers  unreasonable  charges 
for  the  transportation,  in  violation  of  section  1. 

In  the  Georgia  case  the  Commission  considered  the  excep- 
tional conditions  of  refrigerator  car  service,  such  as  the  neces- 
sity for  rapid  transit,  the  expense  of  handling,  the  uncertainty 
of  the  crop,  absence  of  return  load,  etc.  Under  these  circum- 
stances it  was  found  that  the  minimum  load  rate  in  weight  of 
eighty-one  cents  per  one  hundred  pounds  was  not  unreason- 
able, but  that  the  regulation  whereby  the  rate  was  increased 
to  the  valuation  placed  by  the  shipper  was  unreasonable, 
as  the  difference  in  valuation  was  too  slight  to  justify  the  dis- 
crepency.  It  was  also  ruled  that  the  arbitrary  charge  made 
by  the  New  York,  New  Haven  and  Hartford  railroad  com- 
pany for  cars  was  unreasonable. 

The  Commission  considered  this  subject  in  connection  with 
the  general  subject  of  private  freight  cars  in  its  annual  report 
for  1904,  and  said  that  a  practical  monopoly  had  been  created 
in  the  use  of  private  cars  for  the  movement  of  certain  com- 
modities,  especially  in  the  movement  of  freight,  which  had 


15S  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

enormously  increased  to  the  public  the  cost  of  transportation. 
Practically  the  icing  charge,  it  was  said,  is  a  part  of  the  ship- 
per's cost  of  transportation,  as  every  shipper  must  use  the  rail- 
road and  the  refrigerator  car,  and  the  car  must  be  iced.  The 
Commission  said  that  the  result  of  existing;  conditions  was  good 
service  and  an  adequate  car  supply,  and  an  enormous  increase 
in  the  refrigeration  charges,  of  which  instances  were  given. 
The  Commission  contends  that  these  exclusive  contracts,  when 
they  result  in  unreasonable  icing  charges,  are  unlawful  and 
that  the  failure  of  the  carriers  to  publish  such  charges  is  also 
a  violation  of  the  statute.  On  the  contrary,  it  has  been  con- 
tended by  the  private  car  lines  that  icing  is  a  private  service 
over  which  the  commission  has  no  jurisdiction  under  the  pres- 
ent law.  The  Commission,  therefore,  recommends  that  great 
good  will  be  accomplished  by  legislation  which  will  leave  no 
room  for  such  contentions,  and  that  the  only  complete  remedy 
that  could  be  afforded  would  be  by  investing  the  Commission, 
or  some  other  tribunal,  with  power  to  inquire  whether  these 
charges  were  reasonable,  and  to  make  them  reasonable  if  found 
unreasonable.  The  Commission  said  this  could  be  accomplished 
in  two  ways:  First,  either  by  making  the  common  carriers 
responsible  in  the  matter  of  this  special  equipment  and  refrig- 
erator service,  if  they  were  not  uow  responsible;  and  second, 
by  bringing  the  car  line  companies  which  provide  this  refrig- 
eration for  interstate  shipments  under  the  jurisdiction  of  the 
Act  to  Regulate  Commerce  and  making  their  charges  subject  to 
the  determination  of  the  Commission. 

As  to  the  effect  of  the  Elkins  law  of  1903,  infra,  §  310,  in 
bringing  private  cars  under  the  jurisdiction  of  the  Commission, 
see  Parties  subject  to  the  act.  supra,  §  106. 

As  to  discrimination  through  charges  for  refrigeration,  am! 
other  private  car  service,  see  infra,  section  2. 

;;  llt>.  Charges  must  be  reasonable  and  just. —  The  last 
paragraph  of  the  first  section,  providing  that  all  charges  for 
any  service  rendered  in  the  transportation  of  persons  and  prop- 
erty, shall  be  reasonable  and  just,  and  prohibiting  and  declar- 
ing unlawful  every  unreasonable  charge  for  such  service,  is 
only  an  affirmance  of  the  common  law  In  England,  a  com- 
mon carrier  was  bound  to  carry  for  a  reasonable  remuneration 
as  he  was  bound  to  carry  for  all  such   persons  and  property 


§  120.]  INTERSTATE    COMMERCE    ACT  L59 

offered  for  transportation  and  suitable  to  be  carried,  though  it 
was  not  uniformly  held  that  the  carrier  was  bound  to  cany  for 
all  at  the  same  rate.  In  the  Maximum  Hate  case,  167  l".  S. 
501,  42  L.  Ed.  251,  the  Supreme  Court  said  that  this  section 
was  a  simple  enactment  of  the  common  law  requirement,  and 
that  for  more  than  a  hundred  years  it  had  been  the  affirmative 
duty  of  the  courts  to  exact  and  enforce  the  common  law  re- 
quirement that  all  charges  should  be  reasonable  and  just.  This 
requirement  of  reasonableness  grew  out  of  the  relation  of  the 
carriers' occupation  to  the  public  as' was  declared  in  the  Gran- 
ger cases,  94  U.  S.  113,24  L.  Ed.  77,  where  the  court  said  that 
the  carrier  must  carry  when  called  upon  to  do  so,  and  that  he 
could  charge  only  a  reasonable  sum  for  the  carriage,  and  in  the 
absence  of  any  legislative  regulation  upon  the  subject,  the 
courts  must  decide,  as  they  did  for  private  persons  when  con- 
troversies arose,  what  is  reasonable. 

§  120.  Practical  difficulties  in  the  enforcement  of  reason- 
ableness in  rates. —  There  are  few  if  any  cases  wherein  re- 
covery has  been  had  at  lawT  upon  the  common  law  liability  of 
the  carrier  for  charging  excess  over  a  reasonable  rate.  As  said 
by  the  Supreme  Court,  in  the  Trans-Missouri  case  last  cited, 
any  individual  shipper  would  in  most  cases  be  apt  to  abandon 
the  effort  to  show  the  unreasonable  character  of  the  charge, 
by  the  necessary  expense  of  time  and  money  to  prove  the  fact 
and  at  the  same  time  to  incur  the  ill-will  of  the  road  itself  in 
all  its  future  dealings  with  him. 

Furthermore,  the  question  of  what  is  reasonable  is  one  of 
fact,  dependent  upon  the  special  circumstances  of  each  case, 
and  as  these  circumstances  are  changing  from  time  to  time,  a 
rate  which  is  unreasonable  when  paid,  may  become  reasonable, 
through  changed  conditions,  before  the  case  is  determined  in 
the  court  of  last  resort,  or  even  in  the  trial  court.  See  conclu- 
sion of  opinion  in  Smyth  v.  Ames,  169  IT.  S.  1.  c.  549,42  L.  Ed. 
819. 

Another  reason  for  the  practical  difficulty  in  the  way  of  en- 
forcement by  shippers  of  this  common  law  obligation  of  the 
carriers  to  charge  only  a  "reasonable  rate,"  lies  not  only  in 
■the  delay  and  expense  of  litigation,  and  in  the  small  amount 
involved  in  the  payment  of  the  charge  for  any  one  shipment, 
but  in  the  fact  that  a  party  paying  the  unreasonable  charge 


160  INTERSTATE    COMMERCE    ACT.  [SECTION     1. 

without  protest,  in  the  absence  of  any  mistake  or  fraud,  was 
denied  any  right  of  action.  But  see  Cook  v.  C.  E.  I.  &  P.  E. 
Co.,  SI  Iowa,  551,  and  9  L.  B.  A.  764,  where  held  that  pay- 
ments made  by  shippers  in  ignorance  of  discrimination  and 
after  the  assertion  of  the  carrier  that  no  lower  rates  were  given, 
are  not  voluntary  payments  within  the  rule  that  they  could  not 
be  recovered  back. 

Even  assuming  that  recovery  was  had,  the  enforcement  by 
d iff erent  juries  of  their  own  standards  of  reasonableness, —  for  it 
must  be  in  each  case  a  question  of  fact  at  last, —  would  be  neces- 
sarily destructive  of  the  uniformity  which  is  essential  in  any 
permanent  regulation  of  transportation  for  both  shippers  and 
carrier.  See  remarks  of  Phillips,  J.,  in  Windsor  Coal  Co.  v. 
( '.  A:  A.  E,  Co.,  52  Fed.  Eep.  716.  It  was  suggested,  however, 
by  the  United  States  court  of  appeals  in  Southern  Pacific  E. 
Co.  v.  Colorado  Fuel  &  Iron  Co.,  42  C.  C.  A.  12, 101  Fed.  Eep. 
799,  that  it  was  possible  that  a  jury  verdict  would  lead  to  a 
withdrawal  of  the  rate  adjudged  unreasonable. 

§  121.  Standard  of  reasonableness  under  state  statutes. — 
Under  state  statutes  re-asserting  this  common  law  requir- 
ment  of  reasonableness  and  providing  for  the  publication  of 
tariffs  and  charges  and  their  submission  to  and  approval  by  state 
commissions,  it  has  been  held  that  the  common  law  right  is 
superseded  by  the  statute  and  that  there  can  be  no  recovery 
for  alleged  unreasonableness  in  the  charges  thus  published  and 
approved,  as  the  published  rates  will  be  conclusively  presumed 
to  be  reasonable.  Young  v.  Kansas  City,  St.  J.  &  C.  B.  E.  Co., 
33  Mo.  App.  509;  Windsor  Coal  Co.  v.  C.  &  A.  E.  Co.,  52  Fed. 
Eep.  716;  McGrew  v.  Missouri  Pacific  E.  Co.,  114  Mo.  210; 
Eailroad  Co.  v.  People,  77  111.  443;  Sorrell  v.  Eailroad  Co.,  75 
Ga.  509;  Burlington,  C.  E.  &  N.  E.  Co.  v.  Dey,  82  Iowa  312. 
In  the  latter  case,  in  answer  to  the  claim  that  the  Commissioners1 
rate  would  not  secure  the  accused  from  conviction,  if  it  was 
excessive,  the  court  said  that  the  state  would  be  precluded 
from  denying  that  the  rate  was  reasonable. 

.122.  Standard  of  reasonableness  under  the  act. —  The 
principle  on  which  these  cases  concerning  state  statutes  were 
decided  was  applied  to  the  Act  to  Regulate  Commerce  in  the 
case  of  Van  Patten  v.  C,  M.  &  St.  P.  E.  Co.,  81  Fed.  Eep.  545, 
decided  in  the  Circuit  Court  for  the  northern  district  of  Iowa 


§   123.]  INTERSTATE    COMMERCE    ACT.  161 

in  1897.  This  was  a  suit  to  recover  damages  on  the  ground 
that  the  plaintiff  was  charged  an  unreasonable  rate.  The 
court  ruled  that  the  plaintiff  in  order  to  recover  must  show 
that  the  rate  was  unreasonable  according  to  the  provisions  of 
the  act,  and  that  courts  anil  juries  could  not  resort  to  any  other 
standard  of  reasonableness  than  that  fixed  by  the  standard 
rates  published  by  the  carrier,  and  that  it  was  a  good  defense 
to  an  action  for  damages  that  the  carrier  had  adopted,  printed 
and  posted  a  properly  proportioned  schedule  of  rates  under 
section  6,  the  only  other  standard  in  the  act  being  that  as  to 
the  long  and  short  haul  provided  in  section  4,  and  as  the 
charges  complained  of  were  in  accordance  with  the  published 
schedule  and  there  was  no  violation  of  section  4,  there  could 
be  no  recovery. 

In  the  Circuit  Court  for  the  eastern  district  of  Missouri,  Judge 
Adams,  in  Kinavey  v.  Terminal  Railroad  Association,  81  Fed. 
Rep.  802,  about  the  same  time,  in  a  similar  action,  said  that, 
the  rates  so  published  and  filed  were  a,  prima  facie  criterion, 
and  that  to  constitute  a  cause  of  action  there  must  be  an  aver- 
ment either  that  the  carrier  failed  to  publish  a  schedule  of 
rates,  or  that  it  charged  in  excess  of  the  rates  as  published 
and  then  in  force,  and  in  either  case  that  the  charge  in  fact 
was  unreasonable,  or  an  averment  of  other  facts  sufficient  to 
do  away  with  the  prima  facie  effect  of  the  schedule  rates. 

In  the  cases  above  cited  plaintiffs  had  elected  to  proceed  in 
the  courts  under  sections  8  and  9,  infra,  without  appealing  to 
the  Commission  to  adjudge  the  rate  unreasonable  and  for  repa- 
ration. As  to  the  power  of  the  Commission  to  allow  repara- 
tion in  damages  for  unreasonable  rates,  see  infra,  sections  14 
and  16. 

§  123.  The  Commission  lias  no  power  to  fix  rates. —  During 
the  first  ten  years  of  its  existence,  the  Commission  claimed  and 
exercised  the  power  of  fixing  rates  infutoro,  that  is,  when  a 
rate  was  adjudged  unreasonable,  to  determine  what  rate  was. 
reasonable  and  to  direct  the  carrier  by  a  given  date  to  reduce 
the  rate  to  the  designated  maximum.  Illustrations  of  these 
decisions  by  the  Commission  will  be  found  in  their  reports 
from  1887  to  1S97  The  Commission  states  in  its  annual  report 
for  1887,  page  16,  that  out  of  the  one  hundred  and  thirty  live 
formal  orders  made  in  suits  actually  heard  from  its  institution 
ll 


162  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

down  to  that  time,  sixty  eight  had  prescribed  a  change  in  the 
rate  for  the  future. 

This  question  of  the  power  of  the  Commission  did  not  come 
before  the  Supreme  Court  until  1896,  when  it  was  decided  in 
what  is  known  as  the  Social  Circle  case,  162  U.  S.  184,  40  L. 
Ed.  935,  and  the  following  year,  in  the  Cincinnati  Freight  Bu- 
reau case,  107  U.  S.  479,  42  L.  Ed.  243,  that  Congress  had  not 
conferred  upon  the  Commission  the  power  to  prescribe  rates, 
whether  maximum,  minimum,  or  absolute.  The  reasonable- 
ness of  a  rate  in  a  given  case,  the  court  said,  depended  upon 
the  facts,  and  the  function  of  the  Commission  was  to  consider 
those  facts  and  give  them  their  proper  weight,  saving  in  the 
case  first  cited,  p.  196:  "If  the  Commission  instead  of  with- 
holding judgment  in  such  a  matter  until  an  issue  has  been 
made  and  the  facts  found,  itself  fixes  a  rate,  that  rate  is  pre- 
judged by  the  Commission  to  be  reasonable." 

The  court  says  in  the  Freight  Bureau  case,  that  Congress 
might  have  fixed  the  rate  itself  or  committed  to  some  subordi- 
nate tribunal  the  duty,  but  that  it  had  not  done  so. 

In  7  I.  C.  C.  R.  2S6,  the  Commission  says  that  the  effect  of 
these  decisions  was  to  give  the  carriers  the  power  to  exact 
charges  and  establish  rates  independent  of  the  judgment  of 
the  Commission.  See  also  Report  of  Commission  of  1898,  pp. 
23  to  27. 

|  T24.  No  power  in  the  courts  to  fix  rates. — As  the  power 
of  the  Commission  is  thus  limited  to  determine  that  an  exist- 
ing rate  is  unreasonable,  the  power  of  the  courts  is  also  so  lim- 
ited. The  fixing  of  rates  for  the  future  is  a  legislative  and  not 
a  judicial  duty.  This  was  directly  determined  by  the  United 
States  Court  of  Appeals  for  the  eighth  circuit  in  an  opinion  by 
Thayer,  J.,  in  Southern  Pacific  Ry.  Co.  v.  Colo.  Fuel  A:  Iron 
Co.,42  C.  C.  A.  12,  and  101  Fed.  Rep.  779,  in  1900.  In  this 
case  the  Circuit  Court  had  made  an  order  directing  that  the 
rates  from  Pueblo  to  Pacific  coast  points  should  not  exceed 
75  per  cent,  of  the  rates  contemporaneously  in  force  from 
( Ihicago  to  the  same  points,  the  rates  on  steel  rails  and  fasten- 
ings not  to  exceed  4."»  per  cent.j  and  on  other  iron  products 
should  not  exceed  -'57.]  per  cent.  The  court  said  that  as  the 
Supreme  Court  had  decided  that  the  Commission  could  not  fix 
rates,  because  no  such  power  was  given  by  the  Commerce 


§   125.]  INTERSTATE    COMMERCE    ACT.  163 

Act,  for  much  stronger  reasons  the  power  to  fix  a  schedule 
of  rates  did  not  belong  to  the  federal  courts,  because  Congress 
had  not  attempted  to  delegate  that  power  to  the  courts,  even 
if  it  could  divest  itself  of  such  a  legislative  function  and 
impose  it  upon  the  judicial  branch  of  the  government. 

A  restraining  order  upon  a  carrier  which  neither  forbids  nor 
commands  the  doing  of  any  specific  act,  but  simply  repeats 
the  general  admonition  of  the  Interstate  Commerce  Act,  can- 
not be  granted,  since  such  an  injunction  does  not  give  any 
sanction  to  the  statute,  but  leaves  all  vital  questions  concern- 
ing violations  of  the  law  to  be  tried  by  proceedings  for  con- 
tempt, instead  of  in  the  usual  manner  before  a  court  and 
jury.  See  Southern  Pacific  Railroad  Co.  v.  Colorado  Fuel  & 
Iron  Co.  supra. 

Thus,  an  order  that  commodity  rates  must  not  be  lower  than 
necessary  to  meet  competition,  nor  to  be  applied  to  articles 
not  subject  thereto,  is  a  mere  statement  of  what  the  law 
authorizes  and  prescribes,  too  indefinite  to  be  the  basis  of  a 
decree.  Farmers  Loan  &  Trust  Co.  v.  xsorthern  Pacific  It. 
Co.,  83  Fed.  Rep.  249. 

§  125.  The  federal  courts  ou  reasonableness  in  railroad 
rates. —  The  question  of  reasonableness  in  railroad  rates  has 
been  construed  by  the  Federal  Courts  in  two  distinct  classes  of 
cases.  Thus  in  the  judicial  review  of  the  state-imposed  rates 
upon  intrastate  business,  supra,  §§  95-97,  the  courts  have  been 
compelled  to  determine  whether  carriers  have  been  deprived 
of  the  right  to  make  reasonable  charges;  while  in  ques- 
tions arising  under  the  Act  to  Regulate  Commerce  the  ques- 
tion is  raised  whether  the  rates  charged  by  the  carrier  exceed 
what  is  reasonable.  In  the  first  class  of  cases  the  burden  of 
proof  is  upon  the  carrier  to  show  that  the  state  has  fixed 
unreasonable  limitation  upon  his  rates;  while  in  the  other 
class  of  cases  the  burden  is  upon  the  party  complaining  to 
show  that  the  carrier  has  exceeded  a  reasonable  standard. 
The  Supreme  Court  said  in  the  Maximum  Rate  case,  167  U.  S. 
1.  c.  511,  42  L.  Ed.  251,  that  a  rate  may  be  unreasonable  be- 
cause it  is  too  low  as  well  as  because  it  is  too  high.  In  the 
former  case  it  is  unreasonable  and  unjust  to  the  stockholder, 
and  in  the  latter  to  the  shipper. 

In  Covington  &  Lexington  Turnpike  Road  v.  Sanford,  164 


104  INTERSTATE    COMMERCE    ACT.  [SECTION     1. 

1  .  S.  ''7s.  1.  c.  597,  41  L.  Ed.  560,  the  court  said  that  in  deter- 
mining the  question  of  reasonableness  its  duty  was  to  take 
into  consideration  the  interests  both  of  the  public  and  of  the 
owner  of  the  property. 

§  126.  The  capitalization  of  railroads  as  basis  for  rates.— 
It  was  claimed  in  the  Nebraska  Rate  case,  supra,  that  a  rail- 
road was  not  entitled  to  charge  excessive  rates  for  the  purpose 
of  paying  dividends  upon  excessive  capitalization.  The  court 
said  that  it  was  true  that  it  was  not  the  cost  but  the  present 
value  of  railroad  property  which  was  to  be  considered,  and 
that  the  apparent  value  as  represented  in  the  stock  and  bonds 
of  the  company  was  not  alone  to  be  considered;  but  that  in 
a-  :ertaining  value  the  original  cost  of  construction,  the  amount 
expended  for  permanent  improvements,  the  amount  and  mar- 
ket value  of  its  stock  and  bonds,  the  present  as  compared 
with  the  original  cost  of  construction,  the  probable  earning 
capacity  of  the  property  under  the  particular  rates  prescribed 
by  the  statute,  and  the  sum  required  to  meet  operating  ex- 
penses, were  all  matters  for  consideration  and  to  be  given 
such  weight  as  might  be  just  and  right  in  each  case,  with  due 
regard  for  the  rights  of  the  public  as  well  as  for  the  interests 
of  the  railroad  company.  In  this  case  the  enforcement  of  the 
state  rates  was  enjoined  without  prejudice  to  the  right  of 
the  state  commission  to  apply  to  the  court  for  the  discharge 
of  the  injunction  thereafter  if  changed  conditions  would  admit 
of  the  reduction  without  depriving  the  railroad  of  just  com- 
pensation. 

In  the  Minnesota  Hate  case,  186  U.  S.  257,  46  L.  Ed.  1151, 
the  court  said  that  each  case  must  be  determined  by  its  own 
considerations,  and  that  while  the  rule  stated  in  the  Nebraska 
Kate  Case  was  undoubtedly  sound  as  a  general  proposition, 
that  railroads  were  entitled  to  have  fair  return  upon  the  cap- 
ital invested,  it  might  not  justify  them  in  charging  exhorbi- 
tant  charges  in  order  to  pay  operating  expenses  if  the  condi- 
tions of  the  country  did  not  permit  it.  It  sometimes  happened 
that  for  the  purposes  of  ultimate  profit  and  for  the  purposes 
of  building  up  trade,  railroads  carried  both  property  and  pas- 
sengers  at  an  evident  loss,  and  that  while  it  might  not  be 
within  the  power  of  a  State  Commission  to  compel  such  a 
tariff,  it  might  not,  on  the  other  hand,  be  claimed  that  the  rail- 


§  127.]  INTERSTATE    COMMERCE    ACT.  165 

roads  would  in  all  cases  be  allowed  to  charge  grossly  exorbit- 
ant rates  as  compared  with  rates  charged  by  other  roads,  in 
order  to  pay  dividends  to  stockholders. 

In  the  Kansas  City  Stockyards  case,  1S3  U.  S.  79,  40  L.  Ed. 
92,  the  Kansas  statute  regulating  charges  in  public  stock- 
yards was  held  invalid,  three  of  the  judges  concurring  in  an 
opinion  by  Justice  Brewer,  holding  that  the  statute  deprived 
the  company  of  its  property  without  due  process  of  law, 
while  the  other  six  judges  held  that  it  was  discriminative  in 
denying  the  equal  protection  of  the  laws.  The  opinion  of 
Justice  Brewer  said  that  a  classification  which  was  not  based 
upon  the  character  or  value  of  the  services  rendered,  but  simply 
on  the  amount  of  the  business  done  by  the  party,  cutting  down 
his  profits  because  from  the  whole  aggregate  of  his  business 
he  was  enabled  to  make  such  profits,  although  he  made  the 
same  charge  that  others  in  the  business  got,  and  which  was 
perfectly  reasonable  so  far  as  the  value  of  the  services  was 
concerned,  was  unsound  and  invalid. 

In  a  case  before  the  United  States  Circuit  Court  in  Texas 
involving  the  Texas  state  rate,  (Metropolitan  Trust  Co.  v. 
Railroad  Co.  et  al,  90  Fed.  Bep.  683,)  the  court  took  a  more 
liberal  view  of  the  basis  for  estimating  the  value  of  property 
for  the  purpose  of  determining  the  reasonableness  of  rates.  It 
said  that  the  state  authorities  should  take  into  consideration 
the  betterments  and  replacements  made  necessary  by  the 
growth  of  traffic,  and  also  the  permanent  establishment  and 
good  will  of  the  road  should  be  considered  and  determined 
with  reference  to  the  value  upon  which  a  return  would  be 
realized.  The  court  assumed  that  the  cost  of  replacing  the 
physical  structure  of  a  road  was  too  narrow  a  basis  upon  which 
to  determine  its  value,  as  it  may  have  been  constructed  at  a 
time  when  the  conditions  of  the  country  were  such  as  to  give 
no  immediate  expectation  of  reasonably  profitable  earnings. 

§127.  Through  rates  and  local  rates. —  The  distinction  be- 
tween the  through  and  local  services  of  a  company  and  the 
reasonable  right  of  the  carrier  to  make  the  local  rates  greater 
than  the  proportionate  part  of  a  through  rate  over  the  same 
distance  has  been  distinctly  recognized  in  the  decisions  of  the 
Supreme  Court.  The  question  was  raised  in  the  State  Rate 
cases,  as  the  intrastate  rates  subject  to  state  regulation  are  as 


166  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

a  rule  local  rates,  while  the  interstate  rates  not  subject  to  state 
regulation  are  through  rates. 

Thus  in  the  South  Dakota  Eate  case,  176  U.  S.  167,  41  L. 
Ed.  117,  the  court  said  that  it  was  erroneous  to  determine  the 
reasonableness  of  local  rates  without  finding  the  cost  of  doing 
local  business,  and  said  it  was  obvious  on  a  little  reflection  that 
the  cost  of  moving  local  freight  is  greater  than  the  cost  of 
moving  through  freight,  and  equally  obvious  that  it  is  almost, 
if  not  quite,  impossible  to  determine  the  difference  with  mathe- 
matical accuracy,  and  that  upon  such  difference  the  opinions 
of  experts  familiar  with  the  railroad  business  wTas  competent 
testimony  and  could  not  be  disregarded. 

(  >n  the  rehearing  of  this  case  in  the  Circuit  Court,  110  Fed. 
Rep.  173,  the  master  to  whom  the  case  was  referred  reporting 
that  the  business  in  the  state  was  honestly,  economically  and 
efficiently  conducted  and  the  net  earnings  therefrom  in  the 
state  did  not  realize  enough  to  pay  interest  on  the  mortgage 
debt,  the  court  held  that  rates  reducing  such  net  earnings 
were  unreasonable  aud  should  be  enjoined. 

In  the  Minnesota  Eate  Case,  186  U.  S.  257,  46  L.  Ed.  1151  it 
was  claimed  by  the  carrier  that  the  sum  of  two  admitted!}^ 
reasonable  local  rates  could  not  be  unreasonable  as  a  through 
rate  between  two  designated  points.  But  the  court  said  that 
the  practice  of  railroads  in  this  country  was  almost  universally 
to  the  contrary,  and  that  a  through,  tariff  is  almost  always 
lixed  at  a  sum  less  than  the  aggregate  of  local  tariffs  between 
nearby  cities  upon  the  same  road,  saying: 

"  Doubtless  the  fixing  of  a  lower  through  tariff  is  dictated 
largely  by  a  desire  of  each  road  to  get  as  much  mileage  as 
possible  out  of  its  patrons,  as  well  as  by  the  desire  to  meet 
con) petition  of  other  lines  doing  business  in  the  same  terri- 
tory :  but  in  addition  to  this  there  is  an  increased  cost  of  local 
business  over  through  business  in  the  additional  fuel  consumed 
and  the  increased  wear  and  tear  of  the  machinery  on  each 
train  involved  in  the  stopping  at  every  station." 

The  Supreme  Court  also  considered,  before  the  passage  of 
the  Interstate  Commerce  Act,  the  question  of  the  reasonable- 
ness of  the  charges  made  by  the  Union  Pacific  Railway  Corn- 
pan  v  to  the  government  for  compensation  in  transporting  the 
mail,  troops  and  supplies.  See  Union  Pacific  Ey.  Co.  v. 
United   States,   104  U.  S.  662,  26  L.   Ed.  884;  Union   Pacific 


§    128.]  INTERSTATE    COMMERCE    ACT.  167 

Ky.  Co.  v.  United  States,  117  U.  S.  355,  29  L.  Ed.  920.  In  the 
first  of  these  the  court  held  that  the  court  or  jury  was  author- 
ized to  look  over  the  entire  field  of  services  in  determining 
what  was  fair  and  reasonable  charges,  and  that  the  compensa- 
tion should  be  determined  upon  consideration  of  all  the  facts, 
and  not  exceeding  the  amount  paid  by  private  parties  for  the 
§ame  kind  of  service,  and  in  the  other  case  that  the  court 
could  not  affirm  as  a  matter  of  law  that  the  service  rendered 
in  transporting  a  local  passenger  between  two  points  was 
identical  with  that  in  transporting  the  same  passenger  for  the 
same  distance  in  passing  over  the  whole  line. 

In  Augusta  S.  K.  Co.  v.  Wights ville  &  S.  E.  Co.,  74  Fed. 
Rep.  522  (1896),  the  United  States  Circuit  Court  for  the  north- 
ern District  of  Georgia,  discussed  the  distinction  between 
through  and  local  rates,  holding  that  a  carrier  was  not  justi- 
fied in  exacting1  local  rates  where  the  service  belonging  to 
local  rates  was  not  offered,  especially  when  this  was  done  for 
the  purpose  of  diverting  traffic  or  stifling  a  competitor.  It 
was  held,  therefore,  that  the  rates  charged  were  unreasonable 
for  the  service  rendered.  For  discussion  of  through  and  local 
service  and  rates  by  the  Commission,  see  4  I.  C.  C.  R.  251  and 
3  Int.  Com.  Rep.  272. 

§  128.  The  Commission  on  through  and  local  rates. —  The 
Commission,  in  a  number  of  cases,  has  discussed  this  essential 
distinction  between  through  and  local  rates.  Through  rates 
and  through  billing  are  matters  of  agreement  among  carriers 
engaged  in  interstate  commerce,  but  when  they  have  been 
established  and  until  finally  abrogated  or  changed,  they  are 
required  by  the  statute  to  be  kept  open  to  public  use.  See 
infra,  section  6;  9  I.  C.  C.  R.  182.  The  total  rate  for  the 
through  carriage  over  two  or  more  lines,  whether  made  up  of 
different  established  locals  or  of  through  and  local  rates,  or 
upon  a  less  proportionate  basis,  it  is  the  through  rate  that  is 
subject  to  scrutiny  by  the  regulating  authority;  how  the  rate 
is  made  is  only  material  as  bearing  upon  the  legality  of  the  ag- 
gregate charge,  and  how  any  reduction  may  be  accomplished 
is  a  matter  for  the  carriers  to  determine  among  themselves.  5 
I.  C.  C.  R.  324,  and  4  Int.  Com.  Rep.  120,  121.  Through  rates 
are  not  required  to  be  made  on  a  mileage  basis,  nor  local  rates 
corresponding  with  the  divisions  of  a  joint  through  rate  over 


168  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

the  same  line.  Mileage,  however,  is  usually  an  element  of  im- 
portance, and  due  regard  to  distance  and  proportions  are  to  be 
observed  in  connection  with  other  considerations;  they  are 
material  in  fixing-  transportation  charges.  3  I.  C.  C.  It.  252 
and  2  Int.  Com.  Rep.  604;  81.  C.  0.  R  .'177.  A  rate  is  none  the 
less  a  through  rate  in  law  because  the  initial  carrier  charges  its 
local  rate  as  part  of  the  through  rate  and  the  remaining  lines. 
charge  an  agreed  rate  made  by  percentages.  Through  rates 
admit  of  a  great  variety  in  the  forms  they  assume,  and  when 
reasonable  and  fairly  adjusted  in  their  relations  to  local  busi- 
ness, arc  greatly  favored  in  law  because  they  furnish  cheaper 
rates  and  greater  facilities  to  the  public,  while  at  the  same 
time  they  give  increased  earnings  to  a  large  number  of  car- 
riers. 21.  C.  C.  R.  553  and  2  Int.  Com.  Rep.  393.  The  rela- 
tion of  the  proportion  of  the  through  rate  to  the  rate  over  the 
same  distance  along  the  same  line  must  be  reasonable  and  avoid 
unjust  discrimination.  See  infra,  section  3.  See  also  2  I.  C.  C. 
R.  25  and  2  Int.  Com.  Rep.  32.  (As  to  basing  points  in  the  ad- 
justment of  through  rates,  see  infra,  section  3.) 

Divisions  of  joint  rates  are  usually  less  than  the  correspond- 
ing locals,  and  almost  without  exception  are  not  greater.  9  I. 
C.  C.  R.  17.  A  local  rate,  which  presumably  includes  termi- 
nal expenses  is  prima  facie  excessive  as  part  of  a  through  line 
composed  of  two  or  more  carriers.  0  I.  C.  C.  R.  1.  While  there 
is  no  mileage  requirement  in  the  act,  other  than  what  may  be 
involved  in  the  long  and  short  haul  rule  in  section  1  and  the 
general  requirement  of  reasonableness,  as  a  rule  in  the  trans- 
portation of  freight  by  railroads,  while  the  aggregate  charge 
is  continually  increasing  the  further  the  freight  is  carried,  the 
rate  per  mile  is  constantly  growing  less,  making  the  aggregate 
charge  less  in  proportion  every  hundred  miles  after  the  first, 
arising  out  of  the  character  and  nature  of  the  service  per- 
formed and  the  cost  of  the  service,  and  thus  staple  commodi- 
ties and  merchandise  are  able  to  bear  the  charges  from  and  to 
the  most  distant  portions  of  the  country.  1  I.  C.  C.  R.  480  and 
1  Int.  Com.  Rep.  7»'>4;  2  I.  C.  C.  R.  315  and  2  Int.  Com.  Rep. 
l'.f.t.  On  this  general  rule  as  to  local  rates;  3  I.  C.  C.  R. 
l.-o.  and  2  Int.  Com.  Rep.  721;  1  I.  C.  C.  R.  152  and  1  Int. 
Com.  Rep.  356;  0  I.  C.  C.  R.  488;  8  I.  C.  C.  R.  277;  2  1.  C.  C. 
R.  584,  and  2  Int.  Com.  Rep.  414;  7  I.  C.  C.  R.  323. 


I  129.]  INTERSTATE    COMMERCE    ACT.  169 

This  admitted  right  of  carriers  to  fix  through  rates  on  a 
lower  relative  basis  than  local  rates,  has  led  not  only  to  the 
allowance  of  the  through  rate  for  commodities  manufactured 
en  route,  as  in  milling  in  transit  and  compressing  in  transit 
privileges,  but  also  to  illegitimate  devices  to  secure  such  lower 
through  rate.    See  milling  in  transit,  infra,  sections  2  and  '■). 

§  129.  Responsibility  for  through  rates. —  When  railroad 
companies  make  a  through  and  continuous  line  and  offer  it  for 
the  use  of  the  public,  the  Commission  has  held  that  they  can- 
not rid  themselves  of  responsibility  for  unjust  charges  by  break- 
ing the  haul  in  two  and  calling  themselves  carrier  of  the  separate 
ends  of  their  through  line.  Through  and  continuous  lines  im- 
ply through  rates,  which  must  be  reasonable  rates,  and  suitable 
instrumentalities  of  shipment  and  carriage.  0  I.  C.  C.  It.  3TS. 
The  Commission,  in  2  I.  C.  C.  It.  131  and  2  Int.  Com.  Rep.  78, 
applied  this  principle  to  the  Pennsylvania  railroad  company, 
which  operated  a  part  of  a  through  line  and  owns  a  controll- 
ing interest  in  the  capital  stock  of  a  connecting  line,  the  Pitts- 
burgh, Cincinnati  &  St.  Louis,  and  the  commission  held  that 
the  Pennsylvania  Railroad  Company  could  not  free  itself  of 
the  responsibility  for  the  through  rates  by  hiding  behind  the 
corporation  of  the  other  company  as  a  separate  carrier. 

The  carrier  however  does  not  assume  responsibility  for  rates 
made  by  a  connecting  road  because  merely  of  its  giving  them 
in  connection  with  its  own  rates  by  way  of  information  to  par- 
ties desiring  to  make  through  shipments.  1  I.  C.  C.  R.  401,  and 
1  Int.  Com.  Rep.  703.  In  the  absence  of  some  agreement  or 
understanding  with  a  connecting  line,  by  which  the  joint  tariff 
rates  is  authorized,  the  carrier  cannot  lawfully  publish  or  apply 
any  other  rates  than  those  fixed  for  transportation  between 
the  points  reached  by  its  railroads,  and  it  cannot  publish  the 
sum  as  a  rate  to  points  on  the  line  of  another  carrier  without  its 
consent.  Such  a  through  rate  is  not  a  joint  rate,  for  joint  rates 
can  be  made  only  by  concurrence  or  assent,  and  it  is  not  a 
combination  rate,  for  one  of  its  component  parts  is  not  a  sub- 
ject for  a  separate  charge.  There  must  be  lawful  rates  for  each 
■of  the  roads  before  there  can  be  a  lawful  combination  of  rates. 
See  infra,  section  6. 

It  has  been  held  that  where  the  lines  of  several  railroad  cor- 
porations are  conducted  as  a  single  system  for  the  purpose  of 


170  INTERSTATE    COMMERCE    ACT.  [SECTION     1. 

traffic  between  different  points  originating  on  either,  and  such 
corporations  divide  the  profits  of  such  business  on  a  mileage- 
basis,  the  several  corporations  as  to  such  business  are  partners 
liable  to  third  persons  on  the  principles  of  the  law  of  agency. 
See  Lehigh  Valley  R.  Co.  v.  Dupont,  C.  C.  A.  2nd  Circuit,  128 
Fed.  Rep.  840.  But  trie  fact  that  a  railroad  company  owns  stock 
and  bonds  of  another  railroad  does  not  show  partnership  or 
agreement  to  run  the  roads  on  the  latter  of  a  common  account. 
See  Pennsylvania  R.  Co.  v.  Jones,  155  U.  S.  333,39  L.  Ed.  176- 

§  130.  Reasonableness  under  sections  1  and  3. —  The  rea- 
sonableness  of  rates  under  section  1  must  be  distinguished 
from  undue  and  unreasonable  preferences  of  localities,  which 
are  prohibited  by  section  3.  Thus  it  was  held  in  Commission, 
v.  X.  C.  &  St.  L.  K.  Co.,  120  Fed.  Rep.  934,  that  a  finding  of 
unreasonableness  under  section  1  could  not  be  established 
merely  by  a  proof  of  a  violation  of  section  3.  That  is,  that  a 
rate  may  be  reasonable  per  se  and  still  be  unduly  preferen- 
tial of  a  locality,  and  thus  be  violative  of  section  3.  A  rate 
which  is  unreasonable,  however,  per  se,  may  be  shown  by  the- 
same  facts  to  be  unduly  preferential  of  the  locality  as  com- 
pared with  other  localities.     See  infra,  section  3. 

131.  Consideration  of  reasonableness  in  the  courts. — 
In  Commission  v.  Southern  Railway  Co.,  117  Fed.  Rep.  741, 
the  Circuit  Court  of  the  western  district  of  Virginia  said  that 
in  determining  the  issue  as  to  whether  rates  to  and  from  a 
city  were  unjust  and  unreasonable  in  themselves,  the  greatest 
weight  should  be  given  to  the  opinions  of  expert  witnesess,  the 
effect  of  the  rates  charged  upon  the  growth  and  prosperity  of 
the  city,  the  cost  of  transportation  as  compared  with  the  rates 
charged  and  the  rates  in  force  to  other  cities  where  the  cir- 
cumstances are  as  nearly  the  same  as  may  be.  In  this  case 
the  court  refused  to  enforce  an  order  of  the  Commission  direct- 
ing reduction  of  rates  to  Danville,  Va. 

In  Commission  v.  L.  &  X.  R.  Co.  118  Fed.  Rep.  613,  the 
court  found  that  the  rates  to  Savannah  from  certain  points  on 
the  Pensacola  division  of  the  Louisville  &  Xashville  road  were 
unreasonable  and  said  that  they  could  not  be  justified  by  the 
contention  that  the  railroad  company  had  been  building  up  a 
port  and  thus  securing  a  longer  haul.  The  court  said  that 
rates  unreasonable  in  themselves  could  not  be  justified   by 


§   132.]  INTERSTATE    COMMERCE    ACT.  171 

considerations  of  this  character.  In  this  case  an  advanced 
rate  filed  with  the  Interstate  Commerce  Commission  and  put 
into  effect  pending  the  hearing  before  the  Commission  on  the 
legality  of  the  rate  previouslj'  in  force,  was  held  properly  be- 
fore the  Commission  on  such  hearing". 

On  the  issue  of  reasonableness  in  rates,  the  sworn  return  of 
the  officers  of  the  road  made  to  state  authorities  for  the  pur- 
poses of  taxation  is  admissible  but  not  conclusive.  L.  &  \. 
R.  Co.  v.  Brown,  123  Fed.  Rep.  91(1. 

In  Commission  v.  Lehigh  Valley  R.  Co.,  T-t  Fed.  Rep.  784, 
the  court  said  that  the  fact  that  the  cost  of  carriage  of  all  the 
coal  of  an  entire  railroad  system  from  all  points  of  the  ship- 
ment to  all  destinations  was  a  certain  per  cent,  of  the  gross 
receipts  from  all  coal  did  not  justify  the  conclusion  that  on  a 
particular  line  of  part  of  the  system  the  cost  of  carriage  bore 
the  same  relation  to  the  gross  receipts  of  the  whole  line,  and 
that  the  commission  erred  in  holding  the  contrary  theory. 

The  carriage  of  expensive  merchandise  is  entitled  to  greater 
compensation  than  that  of  cheap  goods.  Commission  v.  D.  L. 
&  W.  R.  Co.,  64  Fed.  Rep.  723. 

§  132.  Rulings  of  the  Commission  upon  the  reasonable- 
ness of  rates. — While  the  Commission  has  no  power  to  deter- 
mine what  a  railroad  shall  charge  in  the  future,  and  its  exer- 
cise of  that  jurisdiction  during  the  first  ten  years  of  its  exist- 
ence was  unauthorized,  it  does  not  follow  that  its  conclusions 
and  opinions  in  considering  and  determining  the  reasonable- 
ness of  rates  are  without  value.  The  Commission  is  vested 
with  a  very  important  jurisdiction  in  investigation  and  deter- 
mination whether  rates  are  reasonable  or  unreasonable,  and 
their  conclusions  are  held  prima  facie  correct  in  subsequent 
proceedings  in  the  courts  to  enforce  their  orders.  The  Supreme 
Court  has  in  several  cases  wherein  it  differed  from  the  Com- 
mission in  the  conclusions  of  law  as  to  the  construction  of  the 
act,  remanded  the  cases  to  the  Commission  for  its  own  investi- 
gation upon  the  question  of  the  reasonableness  of  the  rates,  or 
has  entered  judgment  without  prejudice  to  the  Commission's 
right  of  re-investigation  of  the  question  of  reasonableness  of 
the  rates.  Lombard  v.  West  Chicago  Park  Com'rs,  181  U.  S. 
33,  45  L.  Ed.  731;  L.  &  N.  R.  R.  Co.  v.  Behlmer,  175  U.  S. 
676,  44  L.  Ed.  409. 


172  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

In  many  cases  the  conclusions  of  the  Commission  have  been 
accepted  and  acted  upon  by  the  railroad  companies  in  the 
adjustment  of  their  rates,  and  though  its  conclusions  may  be 
recommendations  aud  not  judgments,  they  none  the  less  have 
a  permanent  value  and  constitute  a  body  of  the  administrative 
law  on  this  difficult  question  of  railroad  administration.  The 
opinions  and  conclusions  have  the  greater  weight  from  the 
character  of  the  membership  since  the  organization  of  the 
Commission  and  from  the  thoroughness  of  its  investigation, 
as  evidenced  by  the  opinions. 

§  133.  The  bunion  of  proof  before  the  Commission. — The 
burden  of  proof  in  complaints  made  before  the  Commission,  of 
the  unreasonableness  of  rates,  is  with  the  party  complaining. 
The  Commission  has  uniformly  held  that  rates  cannot  be  de- 
clared  unreasonable  without  other  testimony  than  that 
afforded  by  comparison.  1  I.  C.  C.  E,  230,  and  1  Int.  Com. 
Rap.  H27.  The  long  continuance  of  rates  justifies  the  infer- 
ence of  reasonableness  where  the  rates  were  voluntarily  estab- 
lished. Parties  complaining  must  therefore  make  proof  of 
unreasonableness.     9  I.  C.  C.  It.  1. 

§134.  Presumption  of  reasonableness  from  established 
rates.—  There  may  be  a  presumption  of  reasonableness  or  un- 
reasonableness in  case  of  specific  rates  from  the  scale  of 
charges  theretofore  established  and  maintained  by  the  carrier. 
Thus  where  on  shipments  of  strawberries  and  vegetables  from 
Charleston  destined  to  New  York  the  expense  of  carriage 
over  from  Jersey  City  had  been  included  in  computing  the 
total  cost  of  transportation  to  New  York,  and  thereafter  there 
was  a  change  in  the  place  of  delivery  to  Jersey  City  instead 
of  New  York  and  the  same  scale  of  charges  was  maintained 
to  Jersey  City,  so  that  the  carriers  were  charging  for  a  less 
service  a  compensation  which  they  had  presumably  deemed 
adequate  for  a  greater,  the  rate  so  applied  to  Jersey  City  was 
'prima  fadi  excessive.  See  6  I.  C.  C.  R.  295.  There  may  be 
an  inference  of  unreasonableness  in  a  voluntary  reduction  of 
a  rate  by  a  carrier,  though  not  conclusive.  8  I.  C.  C.  It.  561. 
-  also  4  I.  C.  C.  It.  48,  3  Int.  Com.  Itep.  93,  where  the  Com- 
mission discussed  the  alleged  excessive  freight  rates  on  food 
products. 


§135.]  INTERSTATE    COMMERCE    ACT.  17# 

The  Commission  has  refused  to  change  rates  reasonable  in 
themselves  to  equalize  commercial  conditions  or  to  enable  cities 
to  secure  traffic  from  their  own  territory  (61.  C.  C.  It.  195),  as 
rates  cannot  be  fixed  to  overcome  natural  advantages  for  the 
purpose  of  equalizing  commercial  conditions.     6  I.  C.  C.  It.  647. 

§  135.  The  Commission  oncost  of  service  and  needs  of  the 
shipper. —  The  general  considerations  of  public  policy  relating 
to  the  cost  of  production  of  the  commodity  and  the  needs  of 
the  shipper  on  the  one  hand,  and  the  circumstances  and  finan- 
cial condition  of  the  carrier,  such  as  are  involved  in  the  cases 
before  courts  relating  to  interstate  traffic,  have  been  con- 
sidered by  the  Commission  in  several  cases,  notably  in  the  re- 
port to  the  Senate  in  1890  in  response  to  a  resolution  of  the 
Senate  calling  for  such  report,  on  the  alleged  excessive  freight 
rates  and  charges  on  food  products.  4  I.  C.  C.  It.  4S,  3  Int. 
Com.  Rep.  93-151,  and  in  the  opinion  of  April  1,  1903,  on  the 
proposed  advance  in  freight  rates.  9  I.  C.  C.  It.  3S2.  Thus 
the  circumstances  of  the  carrier,  its  operating  expenses,  cost  of 
transportation,  grades,  density  or  sparseness  of  population, 
volume  of  business,  book  charges,  dividends,  are  all  properly 
considered  but  are  not  controlling.  See  2  I.  C.  C.  It.  375  and 
2  Int.  Com.  Rep.  289;  3  I.  C.  C.  R.  473,  and  2  Int.  Com.  Rep. 
742;  6  I.  C.  C.  R.  601.  See  also  2  I.  C.  C.  R.  272,  and  2  Int. 
Com.  Rep.  162. 

The  capitalization  of  a  railroad,  the  Commission  has  said,  to 
have  consideration  in  cases  involving  the  readjustment  of 
rates,  should  be  examined  by  the  history  of  the  capital  account, 
the  value  of  the  stock  and  various  securities  and  the  actual 
cost  and  the  value  of  the  property  itself,  as  the  making  of  the 
capital  account  alone  the  basis  of  legitimate  earnings  would 
place,  as  a  rule,  railroads  conservatively  managed  and  capital- 
ized at  an  enormous  disadvantage.  8  I.  C.  C.  R.  158.  But  the 
circumstances  of  the  carrier  and  its  financial  interests  are  not 
alone  to  be  considered.  9  I.  C.  C.  R.  160.  While  the  expense 
of  operation,  liability  to  damage  from  sand  drifts,  etc.,  and  the 
requirement  of  a  return  upon  the  investment  of  the  carrier,  are 
considered,  the  financial  necessities  of  the  carrier  do  not  justify 
excessive  rates.  Railroads  are  entitled  to  share  in  the  gene- 
ral prosperity  of  the  country,  but  the  cost  of  replacement  and 
of  new  construction  should  not  be  charged  to  earnings  and 


174-  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

cost  of  operation  so  as  to  diminish  net  earnings  and  justify  an 
advance  of  rates.     9  I.  C.  C.  R.  382. 

§136.  The  Commission  on  character  of  the  traffic— The 

( lominission  has  uniformly  recognized  that  the  character  of  the 

traffic  is  material  in  determining  the  rates  and  that  the  rates 
must  be  varied  according  to  the  value  of  the  commodities  as 
well  as  the  cost  of  handling  and  the  degree  of  risk  to  the  car- 
rier. Thus  to  make  the  rates  on  metals,  coal,  and  other  low 
trrade  freights,  yield  per  ton  the  average  received  on  all  freight 
would  be  unjust,  and  these  considerations  are  the  basis  of 
classification.  See  infta,  section  3.  Thus  coal  is  one  of  the 
most  desirable  kinds  of  traffic,  with  a  small  hazard  of  loss,  and 
the  cost  of  receiving  and  delivering  is  less  than  that  of  most 
other  kinds  of  freight,  and  at  the  same  time  it  is  an  article  of 
universal  necessity  in  daily  life  and  the  basis  of  industries. 
See  10  I.  C.  C.  It.  337.  On  the  other  hand,  the  increased  haz- 
ard to  the  carrier  in  transporting  live  stock  is  properly  taken 
into  account  in  fixing  the  tariff.  10  I.  C.  C.  R.  327.  See  also 
5  I.  C.  C.  II.  514  and  4  Int.  Com.  Rep.  223;  6  I.  C.  C.  R.  488. 
In  the  circumstances  to  be  considered  are  all  questions  bear- 
ing upon  the  cost  of  service  by  the  carrier,  including  any 
special  services  rendered  the  shipper,  such  as  rapid  transit  and 
increased  cost  of  handling.  2  I.  C.  C.  R  73  and  2  Int.  Com.  Rep. 

49. 

§  137.  The  Commission  on  distance  as  a  factor  in  rates,— 

The  Commission  has  uniformity  held  that  distance  is  an  im- 
portant factor  in  determining  the  reasonableness  of  rates  and 
ordinarily  the  standard,  but  not  always  controlling.  It  has 
been  said  to  be  controlling  in  the  absence  of  other  influential 
conditions.  7  I.  C.  C.  R  180.  Distance  by  the  shortest  route 
lias  been  frequently  considered  in  determining  the  rate  on  an- 
other and  competing  line  and  the  distance  by  the  shortest 
available  route  has  been  taken  as  a  basis  of  differentials  in 
grain  rates.    7  I.  C.  C.  R  481. 

When  the  Act  to  Regulate  Commerce  was  before  Congress, 
the  mileage  bases  for  rates  was  suggested  but  not  adopted. 
The  Commission  said  in  I.  C.  C.  R.  629,  2  Int.  Com.  Rep.  9, 
that  the  fact  that  the  rates  were  not  fixed  on  a  mileage  basis 
does  not  necessarily  make  them  either  illegal  or  unjust,  and 
the  Commission  has  no  power  to  make  an  order  requiring  the 


§   138.]  INTERSTATE    COMMERCE    ACT.  175 

.adoption  of  such  a  basis.     See  also  2  L  C.  C.  R.  52,  2  Int.  ( !om. 
Rep.  41. 

Where  rates  seemingly  reasonable  are  made  by  a  number  of 
carriers  in  a  widely  extended  territory  and  are  relatively  fair 
so  far  as  the  evidence  shows,  the  Commission  will  not  order 
these  rates  changed  at  one  important  point,  thereby  throwing 
the  rates  of  the  entire  system  into  confusion  for  the  purpose 
of  conforming  to  the  mileage  basis.  2  I.  C.  C.  R.  315,  2  Int. 
Com.  Rep.  199. 

The  rule  of  increased  aggregate  rate  and  decreased  rate  per 
ion  per  mile  as  distance  increases,  while  general,  is  subject  to 
qualifications  and  exceptions.  9  I.  C.  C.  R.  IT.  Charges  are 
not  proportioned  to  distance  where  distances  are  considerable 
and  the  distances  between  the  points  relatively  small.  5.  I.  C. 
•C.  R.  201  and  4  Int.  Com.  Rep.  65.  As  to  grouping  of  rates, 
see  infra,  section  3. 

§  138.  The  Commission  on  comparison  of  rates.— Rates 
reasonable  in  one  section  of  the  country  may  be  unreasonable 
in  another.  0  I.  C.  C.  R.  121.  There  is  no  necessary  connec- 
tion between  rates  on  traffic  of  the  same  kind  or  class  in  one 
direction  and  rates  in  the  opposite  direction,  as  special  circum- 
stances, such  as  flow  of  traffic,  may  justify  higher  rates  in  one 
direction  than  in  the  other;  especially  is  this  the  case  where  the 
distance  is  of  great  length.  6  I.  C.  C.  R.  85,  121,  9  I.  C.  C.  R. 
642.  The  share  of  a  through  rate  is  not  necessarily  the  meas- 
ure of  a  reasonable  rate,  but  is  properly  used  as  a  basis  of  com- 
parison in  determining  its  legality.  6  I.  C.  C.  R.  458;  and 
the  apportionment  of  through  rates  to  the  different  parts  of 
the  through  line  may  be  significant  of  the  question  of  the  rea- 
sonableness of  the  through  rate.  2  I.  C.  C.  R.  131,  and  2  Int. 
Com.  Rep.  78.  Local  rates  are  not  properly  compared  with 
through  rates.  1  I.  C.  C.  R.  401,  1  Int.  Com.  Rep.  703;  3  I.  C 
C.  R.  534,  2  Int.  Com.  Rep.  777.  Where  a  railroad  owned 
two  parallel  lines,  it  was  held  that  having  accepted  low  rates 
on  one  of  them,  it  should  have  provided  corresponding  advan- 
tages to  the  patrons  of  its  other  lines,  allowances  being  prop- 
erly made  for  any  differences  in  conditions.  4  I.  C.  C.  R.  79. 
and  3  Int.  Com.  Rep.  115. 

In  comparison  with  rates  in  other  localities,  dissimilar  con- 
ditions   and   modifying  circumstances  are   to  be  considered. 


176  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

5  I.  C.  C.  R.  150,  and  3  Int.  Com.  Rep.  7'.»4.  Rates  on  the  lines  of 
rival  companies  or  different  branches  of  the  same  company 
are  properly  considered.  6  I.  C.  C.  R.  121,  I.  C.  C.  R.  325,  1 
Int.  Com.  Rep.  641,  6  I.  C.  C.  R.  L95;  as  also  rates  to  contigu- 
ous points  on  same  line.  2  I.  C.  C.  R.  588,  2  Int.  Com.  Rep. 
412. 

On  the  question  of  reasonableness,  it  is  immaterial  whether 
the  railroads  combine  or  act  separately.  2  I.  C.  C.  R.  375,  2 
Int.  Com.  Rep.  289,  and  an  increase  of  rates  for  the  purpose  of 
securing  certain  lines  of  traffic  from  territory  set  apart  to  rail- 
roads under  an  agreement  is  prima  facie  unreasonable.  6  I.  C. 
C.  R.  195. 

§  139.  Relation  to  State  local  rates.— The  Act  to  Regu- 
late Commerce  contains  no  provision  under  which  the  inter- 
state fares  must  be  reduced  because  the  intrastate  rates  are 
lowered  by  the  State  commissions.  The  substantial  dissimi- 
larity between  through  and  local  rates  is  not  effected  by  such 
exercise  of  State  authority.     7  I.  C.  C.  R.  601. 

§  140.  Reasonableness  and  proportion. —  It  was  said  by 
the  commission  in  an  opinion  by  its  chairman,  Judge  Cooley, 
in  an  early  case,  2  I.  C.  C.  R.  231,  and  2  Int.  Com.  Rep.  137, 
that  the  phrase  "rates  reasonable  in  and  of  themselves'"  was 
very  likely  to  be  misleading,  and  that  it  was  not  the  theory  of 
the  Act  that  reasonableness  of  rates  could  thus  be  separately 
and  independently  determined. 

<  >n  the  contrary,  it  is  assumed  in  the  Act  that  persons,  cor- 
porations and  localities  are  interested  not  only  in  the  rates 
charged  them,  but  in  the  rates  which  are  charged  to  others 
also  and  that  while  the  Act  does  not  require  all  rates  to  be  pro- 
portionate, it  nevertheless  makes  an  element  of  proportion- 
inent  an  important  one  when  the  rates  to  any  locality  are  to 
be  determined.  No  rates  therefore  can  be  reasonable  in  and 
of  themselves,  in  contemplation  of  the  Act,  which  are  made  re- 
gardless of  proportionment.  And  in  another  case  it  was  said 
(3  I.  c.  (\V,.  534,  and  2  Int.  Com.  Rep.  777): 

"The  terms  'reasonable  and  just'  as  used  in  the  statute,  as 
applied  to  rates  are  each  relative  terms.  They  do  not  mean  to 
imply  that  the  rates  on  every  railroad  employed  in  interstate 
commerce  shall  be  the  same  or  even  about  the  same.  The 
conditions  and  circumstances  of  each   road  surrounding  the 


§   141.]  INTERSTATE    COMMERCE    ACT.  177 

traffic,  and  which  enter  into  and  control  the  nature  and  char- 
acter of  the  service  performed  by  the  carrier  in  the  transporta- 
tion of  property,  such  as  the  cost  of  transportation,  which  in- 
cludes volume  or  lightness  of  traffic,  expense  of  construction 
and  operation,  competition  in  some  respects  of  carriers  not 
subject  to  the  law,  rates  made  by  shorter  and  competing  lines 
to  same  points  of  destination,  space  occupied  by  freight,  and 
risk  of  carriage, —  all  have  to  be  considered  in  determining 
whether  a  given  rate  is  reasonable  and  just."  Tested  by  these, 
a  rate  may  be  very  reasonable  and  just  as  to  one  road,  and  not 
as  to  another. 

As  to  the  complexity  of  the  question  of  adjusting  rates  so  as 
to  make  them  at  once  reasonable  per  se  and  in  proportion,  see 
Fink  on  railway  freight  rates,  supra,  §  99,  n. 

§  141.  The  Com  mission  on  rate  wars  and  reasonable- 
ness of  rates. —  In  the  matter  of  the  Chicago,  St.  Paul  <k 
Kansas  City  Railway  Co.  (2  I.  C.  C.  E.  231,  2  Int.  Com.  Eep. 
137),  the  Commission  in  an  opinion  by  Judge  Cooley,  con- 
sidered this  subject  under  an  application  for  alleged  violation 
of  the  fourth  section  of  the  Act,  and  said  that  the  Act  was  not 
passed  to  protect  railroad  corporations  against  the  misconduct 
or  mistakes  of  their  officers,  or  even  primarily  to  protect  such 
corporations  against  each  other,  and  that  the  term  "just  and 
reasonable"  is  employed  to  establish  a  maximum  limitation 
for  the  protection  of  the  public,  not  in  minimum  limitation 
for  the  protection  of  reckless  carriers  against  their  own  ac- 
tion. The  Commission  conceded  that  there  was  evidence  that 
in  many  cases  railroad  companies  temporarily  established  rates 
which  were  not  only  below  the  fair  compensation  for  their 
services,  but  if  persisted  in  were  destructive  of  their  own  int- 
erests as  well  as  of  the  interests  of  its  rivals;  but  carriers  that 
made  such  unreasonably  low  rates  were  giving  the  public  to 
understand  that  those  rates  were  reasonable  and  remu- 
nerative and  were  doing  very  much  to  establish  against  them- 
selves a  low  standard  of  rates  for  all  time.  The  Commission 
held  that  it  had  no  power  to  order  rates  to  be  increased  upon 
the  ground  that  they  were  so  low  that  persistence  in  them 
would  be  ruinous.  This  ruling  was  cited  and  approved  by  the 
Supreme  Court  in  the  Maximum  Eate  case,  167  U.  S.  511,  1.  c, 
42  L.  Ed.  257,  the  court  saying  that  the  argument  showing  that 
the  commission  had  no  power  to  fix  a  minimum  or  establish 

13 


178  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

an  absolute  rate  went  also  to  show  that  they  had  no  power  to 
prescribe  any  tariff  or  to  fix  any  rate  to  control  in  the  future. 
§  14*2.  Illustrative  cases  upon  specific  rates. — Illustrative 
cases  discussing  the  question  of  reasonableness  per  se  on  dif- 
ferent commodities  and  as  to  different  localities:  salt,  5  I.  C. 
C.  II.  299,  and  4  Int.  Com.  Eep.  33;  transcontinental  ship- 
ments from  Xew  York  and  Boston,  I.  C.  C.  K.  436,  and 
1  Int.  Com.  Eep.  754;  coal  rates,  Lake  Erie  District,  2  I. 
('.  C.  EL  618,  and  2  Int.  Com.  Eep.  436;  coal  rates  from 
South  McAllister  to  Dennison,  Tex.,  10  I.  C.  C.  E.  337; 
food  prod  nets  from  Mississippi  Eiver  to  eastern  cities,  4 
I.e.  C.  E.  48,  and  3  Int.  Com.  Eep.  93,  151;  grain  and  grain 
products  from  East  St.  Louis  to  Mississippi  points,  10  I.  C.  C. 
EL  289;  grain  and  grain  products  from  northwestern  Iowa  to 
Chicago,  S  I.  C.  C.  E.  158,  and  from  Chicago  to  Xew  York,  9 
I.  C.  C.  E.  382;  from  Eitzville,  Wash.,  to  St.  Paul,  5  I.  C.  C. 
EL  7,  and  3  Int.  Cora.  Eep.  655;  from  Kentucky  to  Newport 
News,  7  I.  C.  C.  E.  380;  cotton  from  Florida  to  Savannah,  8 
I.  C.  C.  E.  377;  Indian  Territory  to  St.  Louis,  6  I.  C.  C.  E. 
601 ;  roofing  slag  from  Leesport,  Pa.,  to  Harlem  Eiver,  S  I.  C. 
C.  E.  598;  oranges  from  Florida  to  Xew  York,  5  I.  C.  C.  E. 
13,  and  3  Int.  Com.  Eep.  688;  melons  from  South  Carolina  to 
Xew  York,  8  I.  C.  C.  E.  1;  strawberries  and  vegetables  from 
Florida  to  Xew  Y'ork,  6  I.  C.  C.  E.  295 ;  peaches  from  Delaware 
district  to  Boston,  4  I.  C.  C.  E.  664,  and  3  Int.  Com.  Eep.  493; 
furniture  from  Lansing,  Mich.,  to  California,  5  I.  C.  C.  E.  514, 
and  4  Int.  Com.  Eep.  223;  lumber  from  southwest  Virginia  to 
Xew  York,  9  I.  C.  C.  E.  87;  lumber  from  Dalton  to  Lynchburg, 
1.  C.  C.  E.  480,  and  1  Int.  Com.  Eep.  764;  .packing  house 
products  Chicago  to  Xew  Yrork,  9  I.  C.  C.  E.  382;  Savannah 
to  Florida,  8  I.  C.  C.  E.  377;  oil  from  Oil  City  to  Xew  York 
and  Boston,  5  I.  C.  C.  E.  415,  and  4  Int.  Com.  Eep.  162;  milk 
grouping  rates  basis,  to  Xew  Y^ork,  7  I.  C.  C.  E.  92;  live  stock 
terminal  charges  in  Chicago,  7  I.  C.  C.  E.  513;  butter  from 
Lincoln  to  Denver,  5  I.  C.  C.  E.  156,  and  3  Int.  Com.  Eep.  794; 
locality  rates  from  St.  Louis  to  Eureka  Springs,  7  I.  C.  C.  E. 
69;  St.  Louis  to  Lincoln,  Xeb.,  2  I.  C.  C.  E.  155,  and  2  Int. 
Com.  Rep.  98;  Chicago  and  Duluth  to  Norfolk,  9  I.  C.  C.  E. 
221;    Wilmington  to  Boston,  9  I.  C.  C.  E.  17;   Yerona   to 


8  142.1  INTERSTATE    COMMERCE    ACT.  179 

E.  St.  Louis,  7  I.  C.  C.  R  43;  milling  in  transit  rates  from 
south  Minnesota  to  Chicago,  8  I.  C.  C.  R  47;  Eureka  Springs 
rates,  7  I.  C.  C.  R  69;  electric  street  car  line  of  District  of 
Columbia  and  Maryland,  7  I.  C.  C.  R  83;  Meridian  and  Few 
Orleans,  2  I.  C.  C.  R  375,  and  2  Int.  Com.  Kep.  289;  Chicago 
and  Cincinnati  to  southern  territory,  6  I.  C.  C.  R  195 ;  Pacific 
Coast  to  Denver  aud  the  Missouri  River,  9  I.  C.  C.  R  606; 
suo-ar  from  New  Orleans  to  Wichita,  Kan.,  10  I.  C.  C.  E.  460. 


iso  interstate  commerce  act.  [section  2. 

Section  2. 

Page. 

§  143.  Sec  2.  Unjust  discrimination  defined  and  forbidden 180 

144.  Origin  of  the  section 181 

145.  Purpose  of  the  section 182 

146.  Effectiveness  of  the  section 183- 

147.  Common  law  as  to  discriminations 184 

148.  Just  and  unjust  discrimination 186 

149.  Difference  in  charge  based  upon  difference  in  service 189' 

150.  Circumstances  and  conditions  of  through  traffic  and  local  traffic 

are  dissimilar 190 

151.  Competition  of  carriers  does  not  make  circumstances  dissimilar 

under  section  2 190 

152.  The  Party  Rate  case 192 

153.  Wholesale  and  retail  rates  in  freight  traffic 192 

154.  Wholesale  rates  in  freight  and  passenger  traffic  distinguished.  194 

155.  Discrimination  not  unjust  when  based  on  special  service 195 

156.  Carload  and  less  than  carload  rates 195 

157.  Discrimination  in  application  of  carload  rates 197 

158.  Cargo  rates  discriminative 198 

159.  Different  forms  of  discrimination 198 

160.  Discrimination  through  interest  in  connecting  company 200 

161.  Discrimination  by  carrier  in  favor  of  itself  as  a  shipper 200 

162.  Discrimination  in  the  storage  of  goods,  etc  202 

163.  Stoppage  in  transit  privileges 20o 

164.  Unlawful  discrimination  through  abuse  of  stoppage  in  transit 

privileges 204 

165.  Unjust  discrimination  in  passenger  service 205 

166.  Giving  passes  to  shippers  prohibited 206 

167.  Application  of  the  section 206 

168.  Retention  of  overcharge 208 

169.  Enforcement  of  the  section 20S 

170.  Enforcement  by  injunction 209 

171.  Effect  of  rebates  upon  contracts  of  affreightment 210 

§  14:>.     Unjust  discrimination  defined  and  forbidden. — 

Si..  2.  That  if  any  common  carrier  subject  to  the  provisions 
of  this  act  shall,  directly  or  indirectly,  by  any  special  rate, 
rebate,  drawback,  or  other  device,  charge,  demand,  collect,  or 
receive  from  any  person  or  persons  a  greater  or  less  compen- 
sation for  anv  service  rendered,  or  to  be  rendered,  in  the 
tnmsportation'of  passengers  or  property,  subject  to  the  provi- 
sions of  this  act,  than  it  charges,  demands,  collects,  or. receives 
from  any  other  person  or  persons  for  doing  for  him  or  them  a 
like  and  contemporaneous  service  in  the  transportation  of  a 
like  kind  of  trallic  under  substantially  similar  circumstances 
and  conditions,  such  common  carrier  shall  be  deemed*  guilty 
of  unjust  discrimination,  which  is  hereby  prohibited  and  de- 
clared to  be  unlawful. 


§  144.]  INTERSTATE    COMMERCE    ACT.  181 

§  144.  Origin  of  the  section. —  This  section  was  said  by  the 
Supreme  Court  in  the  Texas  &  Pacific  Railway  case,  162  IT.  S. 
197,  1.  c.  219,  40  L.  Ed.  840,  to  have  been  modeled  upon  section 
90  of  the  Railway  Clauses  Consolidation  Act  of  1845,  8  &  9 
Vict.  ch.  20,  the  first  English  statute  regulating  railways. 
This  section  is  as  follows: 

"Sec.  90.  And  whereas  it  is  expedient  that  the  company 
should  be  enabled  to  vary  the  tolls  upon  the  railways  so  as  to 
accommodate  them  to  the  circumstances  of  the  traffic,  but  that 
such  power  of  varying  should  not  be  used  for  the  purpose  of 
prejudicing  or  favoring  particular  parties,  or  for  the  purpose 
of  collusively  or  unfairly  creating  a  monopoly,  either  in  the 
hands  of  the  company  or  of  particular  parties;  it  shall  be  law- 
ful, therefore,  for  the  company,  subject  to  the  provisions  and 
limitations  herein  and  in  the  special  act  contained,  from  time 
to  time  to  alter  or  vary  the  tolls  by  the  special  act  authorized 
to  be  taken,  either  upon  the  whole  or  upon  any  particular  por- 
tions of  the  railway,  as  they  shall  think  fit;  provided  that  all 
such  tolls  be  at  all  times  charged  equally  to  all  persons,  and 
after  the  same  rate,  whether  per  ton,  per  mile,  or  otherwise, 
in  respect  to  all  passengers,  and  of  all  goods  or  carriages  of 
the  same  description,  and  conveyed  or  propelled  by  a  like  car- 
riage or  engine,  passing  only  over  tJie  same  portion  of  the  line 
of  'railway  under  the  same  circumstances;  and  no  reduction  or 
advance  in  any  such  tolls  shall  be  made  either  directly  or  in- 
directly in  favor  of  or  against  any  particular  company  or  per- 
son traveling  upon  or  using  the  railway." 

This  section  of  the  English  law,  known  as  the  equality 
clause,  differs  from  section  2  of  the  American  Act  in  the  words 
"passing  only  over  the  same  line  of  railway  under  the  same 
circumstances,"  which  impart  a  very  different  meaning  as  con- 
strued in  the  English  courts  from  the  words  "under substanti- 
ally similar  circumstances  and  conditions  "  found  in  the  Amer- 
ican Act.  The  English  section  as  construed  b}'  the  English 
courts  was  confined  in  its  operation  to  shipments  passing  only 
over  the  same  portion  of  the  line  between  the  same  points  of 
departure  and  the  same  points  of  arrival.  See  M.  S.  &  L.  Ry.  Co. 
v.  Denaby  Main  Colliery  Co.,  4  Railway. &  Canal  Traffic  Cases, 
p.  452;  Murray  v.  G.  &  S.  W.  Ry.  Co.,  4  Railway  &  Canal 
Traffic  Cases,  p.  460;  Denaby  Main  Colliery  Co.  v.  M.  S.  &  L. 
Ry.  Co.,  6  Railway  &  Canal  Traffic  Cases,  p.  141;  L.  &  Y.  Ry. 
Co.  v.  Greenwood,  Law  Reps.  21  Q.  B.  Div.  pp.  217  and  218. 

It  appears  from  a  statement  made  in  the  debate  in  Congress 
by  Senator   Sherman,  on   May  1-4,  1887,  that  the  words  "and 


182  INTERSTATE    COMMERCE    ACT.  [SECTION    2. 

from  the  same  original  point  of  departure  or  from  the  same 
point  of  arrival "  were  at  one  time  contained  in  section  2,  but 
that  these  words  were  taken  out  by  the  conference  committee, 
and  the  words  "under  substantially  similar  circumstances  and 
conditions"  adopted  in  lieu  thereof.  So  that  discriminations 
are  -unjust*'  and  violative  of  this  section :  first,  when  the 
service  is  like  and  contemporaneous;  second,  when  it  is  rendered 
in  the  transportation  of  a  like  kind  of  traffic,  and,  third,  when 
the  service  is  rendered  under  substantially  similar  circumstan- 
ces and  conditions.  That  is,  all  three  of  these  conditions  must 
concur. 

§  145.  Purpose  of  the  section. — The  purpose  of  this  second 
section   is   the  prevention   of    unjust  discrimination  between 
shippers  by  any  form  of  device.     It  was  said  by  the  Commis- 
sion in  its  report  on  its  investigation  of  the  subject  of  "  under- 
billing,"  1  I.  C..C.  R.  633,  and  1  Int.  Com.  Rep.  813,  that  the 
enumeration  in  this  section  of  special  rates,  rebates,  drawbacks 
and  other  devices  showed   the  methods  of  favoritism  which 
were  presented  most  distinctively  to  Congress  in  framing  the 
act,  and  added :  "  The  investigation  which  preceded  the  passage 
of  the  Act  had  disclosed  the  fact  that  preferences  were  frequent, 
in  fact  were  almost  universal."     The  Commission  quoted  from 
the  report  of  the  Senate  committee  to  the  effect  that  the  pre- 
vailing  policy  of  railway  management   is    but  an  elaborate 
svstem  of  special  rates,  rebates,  drawbacks  and  concessions  to 
foster  monopoly,  to  enrich  favored  shippers  and   to  prevent 
free  competition  in  the  many  lines  of  trade  in  which  the  item 
of  transportation  is  an  important  factor.  The  Commission  said 
that  the  Act  was   prepared  accordingly  with  these  evils  di- 
rectly in  view. 

The  section  has  been  construed  both  by  the  Commission  and 
by  the  courts,  in  recognition  of  these  evils  which  Congress 
intended  to  remedy.  The  Supreme  Court  said  in  Wight  v. 
United  States,  167  IT.  S.  512,  12  L.  Ed.  25S,  that  the  section 
was  designed  to  compel  every  carrier  to  give  equal  rights  to 
all  shippers  over  its  own  road  and  to  forbid  it  by  any  device 
to  enforce  higher  charges  against  one  than  another. 

In  another  case,  Union  Pacific  Railway  Co.  v.  Goodrich,  119 
U.  S.  680,  37  L.  Ed.  896,  the  court  said  in  construing  a  Colorado 
statute  similar  in  terms,  that   the    purpose  of   the   Colorado 


§   14C>.]  INTERSTATE    COMMERCE    ACT.  '    183 

statute  was  to  apply  to  intrastate  traffic  the  same  wholesome 
rules  and  regulations  which  Congress  thereafter  applied  to  com- 
merce among  the  states,  and  to  cut  up  by  the  roots  the  en- 
tire system  of  rebates  and  discriminations  in  favor  of  partic- 
ular localities,  special  enterprises  and  favored  corporations? 
and  to  put  all  shippers  upon  an  absolute  equality. 

This  section  2,  however,  does  not  deal  with  discriminations 
between  and  preferences  in  favor  of  or  against  localizes,  or 
with  discriminations  between  kinds  of  traffic,  which  are  dealt 
with  in  the  succeeding  section,  but  only  with  discriminations 
between  shippers  of  the  same  kind  of  traffic,  that  is,  where 
the  service  is  in  the  transportation  of  a  like  kind  of  traffic 
"under  substantially  similar  circumstances  and  conditions." 

§  146.  Effectiveness  of  the  section.  The  act  of  February 
19,  1003. —  The  main  purposes  of  the  Act  are  more  distinctly 
expressed  in  the  second  section  than  in  any  other.  The  rea- 
sonableness of  rates  remains  as  complex  and  indefinite  a  prob- 
lem as  when  the  Act  was  passed,  and  as  will  be  hereafter  seen, 
the  anticipated  prevention  of  the  building  up  of  trade  centers  to 
the  prejudice  of  smaller  towns  has  proven  impossible  of  reali- 
zation in  the  face  of  controlling  competition.  On  these  sub- 
jects the  powers  of  the  Commission  have  been  materially  cur- 
tailed by  the  judicial  construction  of  the  Act,  but  on  the  ques- 
tion of  discrimination  between  individuals,  or  classes  of  indi- 
viduals in  the  same  kind  of  traffic,  the  rulings  of  the  court 
have  been,  with  the  exception  of  the  Party  Rate  decision,  in 
harmony  with  those  of  the  Commission.  It  may  be  said  fur- 
ther, that  the  evils  prohibited  in  this  section  are  recognized  by 
railway  managers,  so  that  they  have  in  the  main  co-operated 
with  the  Commission  in  their  efforts  for  their  suppression. 
Thus  the  Commission  said  in  its  first  annual  report,  1887,  in 
reviewing  the  operation  of  the  Act  for  the  first  eight  months 
in  which  it  was  in  force,  that  it  was  justified  in  saying  that 
the  Act  had  operated  directly  to  increase  railroad  earnings  by 
putting  an  end  to  rebates,  drawbacks  and  special  rates  upon 
freight  business,  a  result  which  was  also  found  to  be  eminently 
satisfactory  to  the  general  public;  and  the  investigations  of 
the  Commission  had  not  as  yet  disclosed  the  existence  of  un- 
just discriminations  resulting  from  the  use  of  those  particular 
methods  of  preference  in  interstate  traffic.     "  On  the  contrary,  a 


1S4  INTERSTATE    COMMERCE    ACT.  [SECTION    2. 

vast  number  of  instances  have  been  found  where  special  rates, 
rebates  and  drawbacks  have  been  discontinued,  and  where 
preferences  and  advantages  which  were  formerly  thereby 
given,  have  been  terminated." 

In  the  intense  competition  of  business,  new  devices  for  se- 
curing discriminating  freight  rates  have  been  eagerly  sought, 
and  it  appears  from  the  subsequent  reports  of  the  Commission 
that  while  discriminations  are  less  openly  given,  the  evil  is  far 
from  being  suppressed,  particularly  in  the  use  of  private  cars 
in  freight  traffic,  in  the  division  of  rates  with  terminal  railroads 
owned  or  controlled  by  shippers  and  in  other  devices.  See  re- 
port of  1904,  pages  12  to  19,  and  10  I.  C.  C.  E.  385, 10  I.  C.  C. 
11.  450.  The  act  of  February  19,  1903,  commonly  known  as 
theElkins  bill,  has  very  materially  enforced  this  section.  This 
law,  infra,  §  310,  requires  carriers  in  all  cases  to  publish  their 
tariffs  and  prohibits  "any  practice  on  the  part  of  the  carriers 
whereby  any  such  propert}"  shall  by  any  device  whatever  be 
transported  at  a  less  rate  than  that  named  in  the  tariff  .  . 
or  whereby  any  other  advantage  is  given  or  discrimination 
practiced."  Under  this  amendment  the  practice  of  secret  re- 
bates from  published  rates,  though  made  to  all  "similarly 
circumstanced  "  is  made  unlawful. 

§  147.  Common  law  as  to  discriminations. — It  was  said 
of  the  first  section,  as  to  the  obligation  to  charge  reasonably \ 
that  it  was  only  a  reaffirmation  of  the  common  law.  This  can 
be  said  only  in  a  qualified  sense  of  the  obligation  to  charge 
equally  imposed  by  the  second  section.  In  the  Party  Rate  case 
145  U.  S.  275,  36  L.  Ed.  703,  the  Supreme  Court  said  that  at 
common  lawr  it  was  even  doubted  whether  carriers  were  bound 
to  make  the  same  charge  to  all  persons  for  the  same  service, 
although  the  weight  of  authority  in  this  country  was  in  favor 
of  equality  of  charge  to  all  persons  for  similar  service. 
Several  cases  have  held  that  while  it  was  elementary  that 
common  carriers  could  charge  no  more  than  a  reasonable  com- 
pensation, the  mere  discrimination  in  rates  was  not  illegal. 
If  a  rate  charged  one  party  was  reasonable,  he  could  not  com- 
plain if  another  was  charged  a  less  rate;  though  the  fact  that 
another  was  charged  less  might  be  material  as  evidence  for  the 
jury  tending  to  prove  that  the  reasonable  charge  was  the 
smaller  one.      Mr.  Justice  Rlackburn  in  Great    Western  Rail- 


§  147.]  INTERSTATE    COMMERCE    ACT.  185 

way  Co.  v.  Sutton,  L.  K.  4  H.  L.  238;  Johnson  v.  Pensacola 
etc.  Co.  16  Fla.  023.  In  Cowclen  v.  Pacific  Coast  Steamship 
Co.  94  Cal.  470  and  IS  L.  E.  A.  221,  the  court  intimated  that 
it  was  because  the  common  law  was  not  clearly  settled  on  this 
point  that  it  was  necessary  for  Parliament  to  enact  the  strin- 
gent equality  clauses,  and  that  there  was  a  lack  of  direct  au- 
thority in  this  country  for  the  reason  that  common  carriers, 
especially  railway  companies,  had  been  placed  entirely  under 
the  control  of  statute  laws. 

On  this  question  of  the  right  of  discrimination  at  common 
law,  see  Ex  parte  Benson,  18  S.  C.  38;  Baxendale  v.  Railway, 
4C.  B.,  1ST.  S.  63.  In  the  latter  case,  in  1858,  it  was  said  that 
though  a  carrier  was  limited  to  a  reasonable  charge,  there  was 
no  common  law  obligation  to  charge  equal  rates  to  all  custom- 
ers. It  followed  that  he  could  discriminate  in  the  purpose  of 
securing  traffic  which  would  otherwise  go  by  another  route. 
Pagan  v.  Aiken,  9  Lea  (Tenn.),  609  (1S82). 

In  Menacho  v.  Ward,  27  Fed.  Rep.  529  ( S.  D.  of  K  Y.),  de- 
cided in  1886,  the  court,  Wallace,  J.,  conceded  the  right  to 
discriminate,  and  said  the  courts  had  always  recognized  the 
rights  of  carriers  to  regulate  their  charges  with  reference  to 
the  quantities  of  merchandise  carried  for  the  shipper,  either  at 
a  gkTen  shipment  or  in  a  given  period  of  time,  although,  said 
the  court,  public  sentiment  in  many  communities  had  objected 
to  such  discrimination  and  had  crystalized  into  condemnation 
of  the  practice.  The  court  however  refused  to  apply  this 
principle  to  the  case  where  the  carrier,  ( a  steamship  com- 
pany ),  sought  to  make  a  discriminating  rate  in  order  to  pre- 
vent competition,  that  is,  by  charging  a  higher  rate  to  those 
who  refused  to  patronize  it  exclusively. 

See  also  later  cases  decided  by  the  same  court  after  the  pas- 
sage of  the  Interstate  Commerce  Act.  Thus  in  United  States 
v.  D.  L.  &  W.  K.  Co.,  40  Fed.  Pep.  101  (1SSS),  it  was  said  that 
the  Interstate  Commerce  Act  had  qualified  materially  com- 
mon law  rights  and  obligations  of  carriers.  That  at  common 
law  he  was  not  obliged  to  treat  all  who  patronized  him  with 
absolute  equality  and  that  discriminations  were  only  unrea- 
sonable, when  they  inured  to  the  undue  advantage  of  one 
person,  or  class  of  persons  in  consequence  of  some  injustice 
inflicted  on  another. 


ISO  INTERSTATE    COMMERCE    ACT.  [SECTION    2. 

See  also  the  same  court  in  Interstate  Commerce  Commission 
v.  Texas  &  Pacific   R.  Co.,  52  Fed.  Rep.  1ST. 

|   14s.   Just  and  unjust  (list*  rim  nation  at  common   law. — 

The  right  of  discrimination  at  common  law  was  not  unlim- 
ited, and  the  general  statement  found  in  some  of  the  opinions 
that  the  carrier  had  the  right  at  common  law  to  consult  its 
own  interests,  was  qualified  by  the  distinct  recognition,  espec- 
ially in  the  latter  cases,  that  this  discrimination  must  be 
exercised  within  the  limits  of  fairness  and  impartiality  in  view 
of  the  public  duty  owing  by  the  carrier.  See  C.  C.  C.  &  I.  R. 
Co.  v.  Closser,  126  Ind.  348  and  9  L.  R.  A.  754,  decided  in 
1S90.  There  is  an  obvious  difficulty  in  the  application  of  this 
principle  in  cases  where  the  discrimnation  is  sought  to  be  jus- 
tified on  the  ground  of  securing  traffic  which  would  not  other- 
wise be  secured,  and  in  thus  making  concessions  to  large  ship- 
pers, thereby  giving  them  a  distinct  advantage  over  their 
competitors. 

The  trend  of  the  later  cases,  both  in  the  Federal  and  State 
Courts,  irrespective  of  the  Interstate  Commerce  Act,  distinctly 
condemns  discrimination  based  solely  on  the  ground  of  the 
quantity  of  the  freight  shipped,  as  contrary  to  sound  public 
policy  and  inconsistent  with  the  obligations  of  the  carriers  to 
the  public.  Thus  in  B.  C.  R.  &  X.  R.  Co.  v.  Northwestern 
Fuel  Co.,  31  Fed.  Rep.  (Iowa)  652,  the  Circuit  Court,  Brewer 
J.,  held  that  at  common  law  a  contract  whereby  a  railroad 
company  made  a  rate  of  SI. 60  per  ton  to  all  shippers  of 
100,000  tons  per  month  or  over,  with  a  rate  of  not  less  than 
Sl\4m  per  ton  to  those  shipping  less  than  100,000  tons  per 
month,  was  so  arbitrary  and  obviously  in  the  interest  of  capi- 
tal as  to  be  contrary  to  public  policy  and  void,  though  it  was 
not  distinctly  decided  that  any  discrimination  based  upon  the 
amount  of  shipments  was  permissible. 

In  another  case,  Handy  v.  C.  &  M.  R.  Co.,  31  Fed.  Rep.  689, 
S.  D.  of  Ohio  (1887),  Baxter,  J.,  removed  the  receiver  of  a 
railroad  for  making  a  discriminating  rate  in  favor  of  the 
Standard  Oil  Company  of  ten  cents  a  barrel  while  charging  a 
rival  shipper  thirty-five  cents  a  barrel  and  agreeing  to  pay  the 
twenty-five  cents  per  barrel  excess  thus  received  over  to  the 
Standard  Oil  Company.  This  discrimination  was  sought  to  be 
justified  because  the  Standard  Oil  Company  had   threatened  to 


§  14S.]  INTERSTATE    COMMERCE    ACT.  187 

store  its  oil  until  it  could  lay  a  line  of  pipes  unless  the  receiver 
should  give  such  rates.  The  court  said  this  was  such  gross 
and  wanton  discrimination  as  to  warrant  the  removal  of  the 
receiver,  although  he  had  acted  under  the  advice  of  counsel 
for  what  he  deemed  the  protection  of  the  interests  of  the  rail- 
road, and  it  did  not  appear  that  the  money  received  from  the 
rival  shipper  had  been  paid  over  to  the  Standard  Oil  Com- 
pany. 

In  Hayes  v.  Pennsylvania  Co.,  12  Feci.  Eep.  309,  decided  in 
1882  on  common  law  principles  before  the  enactment  of  the 
Interstate  Commerce  Act,  (  Dist.  of  Ohio),  Judges  Bax- 
ter and  Walker,  it  was  held  that  discriminations  based 
solely  on  the  amount  of  freight  shipped  without  reference  to 
any  conditions  tending  to  decrease  the  cost  of  transportation, 
were  discriminations  in  favor  of  capital  and  were  a  wrong  to 
the  disfavored  party,  entitling  him  to  recover  the  difference 
between  the  amount  paid  by  him  and  that  paid  by  the 
favored  competitor.  The  court  in  its  opinion  distinguished 
the  case  of  Nicholson  v.  Great  Western  Railroad  Co.,  1  C.  B. 
S.  366,  as  in  that  case  there  was  an  undertaking  to  furnish  a 
specific  quantity  of  freight  within  a  stated  period.  The  court 
said  in  the  Hayes  Case,  however,  that  while  this  English  case 
was  clearly  distinguishable,  future  experience  might  possibly 
call  for  a  modification  of  the  principle  there  announced.  This 
decision  was  approved  in  Kinsley  v.  B.  N".  Y.  &  P.  R.  R.  Co., 
37  Fed.  Rep.  181,  decided  in  18S8,  where  the  receiver  of  a 
railroad  was  directed  to  pay  the  claim  for  money  exacted  for 
freight,  when  a  lower  rate  was  charged  to  another  shipper 
who  shipped  larger  quantities  of  freight. 

On  the  other  hand,  there  is  a  class  of  cases  where  a  reduced 
rate  in  consideration  of  the  amount  of  shipment,  where  the 
shipment  was  attended  with  decreased  expense  to  the  carrier, 
was  sustained,  as  was  Hoover  v.  Pennsylvania,  156  Pa.  22", 
and  22  L.  R.  A.  263,  and  L.  &  N.  Consolidated  R.  Co.  v.  Wil- 
son, 132  Ind.  517,  and  18  L.  R.  A.  105.  In  the  Pennsylvania 
case  cited,  the  Pennsylvania  Constitution  prohibited  discrimi- 
nations in  somewhat  the  same  terms  as  section  2  of  the  Inter- 
state Commerce  Act,  and  the  court  held  that  the  carrier  had 
a  right  to  discriminate  in  rates  on  coal  in  favor  of  a  manu- 
facturer, saying: 


188  INTERSTATE    COMMERCE    ACT.  [SECTION    2. 

"  Differences  in  freight  rates  on  coal  to  manufacturers  and 
mere  dealers  are  and  have  been  for  many  years  in  universal 
practice,  and  not  a  single  case  other  than  this  has  reached  the 
courts  of  last  resort,  either  in  England  or  in  this  country, 
(jiicstioning  the  entire  propriety  and  legality  of  such  differen- 
ces, and  that  circumstance  is  ample  proof  that  both  the  profes- 
sional and  the  lav  mind  recognize  that  the  difference  is  learal." 
The  court  cited  in  this  case  the  decision  of  the  Supreme  Court 
of  the  United  States  in  the  Party  Eate  Case,  infra. 

In  Evershed  v.  London  &  Northwestern  E.  Co.,  L.  E.  3  Q.  B. 
1).  L35,  decided  in  1S77,  the  court  conceded  that  a  large  busi- 
ness could  be  done  at  a  cheaper  rate  than  a  small  one,  and  that 
speaking  generally,  it  was  open  to  the  railway  company  to 
make  a  bargain  with  a  person  provided  they  were  willing  to 
make  that  same  bargain  with  another,  although  that  other  was 
not  in  a  position  to  make  it.  In  this  case,  however,  it  was  held 
that  a  gratuitous  carting,  loading  and  unloading,  by  a  railroad 
company  for  three  firms  of  brewers  in  order  to  get  their  busi- 
ness, was  an  unjust  discrimination  against  another  brewer  in 
the  same  place,  the  three  being  connected  with  another  railway 
while  the  complainant  was  not  connected  with  either  railway. 

On  the  other  hand,  the  right  to  make  any  discrimination  in 
favor  of  a  shipper,  where  the  ground  of  discrimination  is  based 
solely  on  the  amount  furnished  for  shipment,  even  when  neces- 
sary to  secure  the  traffic  of  the  favored  shipper,  has  been  de- 
nied on  the  ground  of  public  policy  and  the  public  duty  of  the 
carrier.  See  Scofield  v.  Lake  Shore  &  Michigan  Southern 
E.  Co.,  43  Ohio  St.  571;  State  v.  Eailroad,  47  Ohio  St.  130. 
In  Hilton  Lumber  Co.  v.  Atlantic  Coast  Line  E.  E.  Co.,  the 
Supreme  Court  of  North  Carolina,  in  a  recent  opinion,  Novem- 
ber 15,  1904,  60  C.  L.  J.  30,  in  a  review  of  the  cases,  held  that 
a  railroad  carrying  raw  material  to  factories  could  not  charge 
a  factory,  agreeing  to  ship  the  manufactured  product  by  the 
same  road,  less  for  the  same  service  than  it  charged  the  factory 
which  makes  no  such  agreement,  saying  that  discrimination 
was  a  more  dangerous  power  than  high  rates,  if  the  latter  were 
charged  impartially  to  all.  It  will  be  observed,  however,  that 
the  facts  of  this  case  would  permit  the  allowance  of  a  through 
rate  under  the  milling  in  transit  principle  as  recognized  under 
the  Interstate  Commerce  Act.     See  infra,  §  103. 


§  149.]  INTERSTATE    COMMERCE    ACT.  189 

As  to  other  cases  on  the  same  general  subject,  see  Fitehburg 
K.  Co.  v.  Gage,  12  Gray  393;  Spofford  v.  B.  &  M.  R.  Co.,  128 
Mass.  326;  Avinger  v.  So.  Car.  R.  Co.,  29  S.  C.  205;  Railroad 
Co.  v.  Forsaith,59  K  H.  122;  Chicago,  etc.  K.  Co.  v.  Suffern, 
129  111.  271;  Atwater  v.  Railroad  Co.,  48  N.  J.  Law,  55;  Cook 
v.  C.  R.  I.  &  Pac.  R.  Co.,  81  Iowa  551,  9  L.  R.  A.  764.  In  this 
latter  case  the  court  held,  that  the  allowance  of  a  rebate  by  a 
carrier  to  certain  of  his  customers,  from  the  tariff  rates  charged 
other  customers  for  precisely  the  same  service,  was  sufficient 
of  itself  to  show  that  the  rate  charged  was  unreasonable  and 
unjustly  discriminative. 

See  also  Great  Western  R.  Co.  v.  Sutton,  L.  R.  4  H.  L.  226; 
Messenger  v.  PennCo.,  37  jST.  J.  Law,  531. 

§  140.  Discrimination  in  charge  based  upon  difference  in 
service  not  discriminative. —  While  therefore  there  has  been 
a  difference  of  judicial  opinion  as  to  what  constitutes  unjust 
discrimination,  at  common  law,  with  a  distinct  trend  towards 
a  clearer  recognition  of  the  public  duty  of  the  carrier  and  the 
public  policy  of  equality  of  charge,  it  is  clearly  recognized  that 
a  discrimination  is  not  unjust  when  it  is  based  upon  asubstan- 
tiat  difference  in  the  mode  and  kind  of  service. 

Thus  it  was  held  by  the  Supreme  Court  of  the  United  States 
in  the  case  already  cited  as  to  the  common  law  in  the  Federal 
Courts,  Western  Union  Telegraph  Co.  v.  Call  Publishing  Co., 
supra,  that  common  carriers,  whether  engaged  in  interstate 
commerce  or  in  that  wholly  within  the  state,  were  performing 
public  service.  "They  are  endowed  by  the  state  with  some  of 
its  sovereign  power,  such  as  the  right  of  eminent  domain,  and 
so  by  reason  of  the  public  service  they  render.  As  a  conse- 
quence of  this  all  individuals  have  equal  rights  both  in  respect 
to  service  and  charges.  Of  course  such  equality  of  right  does 
not  prevent  differences  in  the  modes  and  kinds  of  service  and 
different  charges  based  thereon.  There  is  no  cast  iron  rule  of 
uniformity  which  prevents  the  charge  from  being  above  or  be- 
low a  particular  sum,  or  requires  that  the  service  should  be  ex- 
actly along  the  same  lines.  But  that  principle  of  equality 
does  forbid  any  difference  in  charge  which  is  not  based  upon 
difference  in  service,  and  even  when  based  upon  difference  in 
service  must  have  some  reasonable  relation  to  the  amount  of 
difference  and  cannot  be  so  great  as  to  produce  an  unjust  dis- 
crimination." 


190  INTERSTATE    COMMERCE    ACT.  [SECTION    2. 

This  was  a  case  of  alleged  discrimination  in  telegraph  rates 
which  are  not  subject  to  the  Interstate  Commerce  Act. 

|  150.  Circumstances  and  conditions  of  through  traffic 
and  local  traffic  are  dissimilar.— While  competition  between 
carriers  cannot  justify  discrimination  between  individuals, 
competition  may  and  does  have  an  influence  in  determining 
the  through  rates,  thus  making  them  under  essentially  differ- 
ent circumstances  and  conditions  from  the  local  rates  to  other 
points  on  the  same  line.  In  such  cases  the  reduced  rate  affected 
by  competition  is  controlled  by  circumstances  and  conditions 
substantially  dissimilar  within  the  meaning  of  the  act.  But 
whether  so  controlled  or  not,  it  must  be  the  same  to  all  ship- 
pers under  the  same  conditions.  It  has  been  uniformly  held 
both  by  the  Commission  and  by  the  courts,  that  a  local  rate  to 
a  given  point  and  the  pro  rata  part  of  a  through  rate  to  the 
same  point  on  the  same  line  are  not  under  similar  circum- 
stances and  conditions. 

The  phrase  "under  similar  circumstances  and  conditions" 
is  found  in  sections  2  and  4.  As  hereafter  seen,  competitive 
conditions  may  create  dissimilar  circumstances  and  conditions 
between  localities  under  section  4,  but  when  the  rates  are  thus 
fixed  under  dissimilar  conditions,  section  2  requires  that  ship- 
pers in  any  given  locality  must  be  treated  alike  for  the  same 
service.  But  through  traffic  is  a  different  "kind  of  service" 
from  local  traffic.  This  was  held  in  Union  Pacific  Railway 
Co.  v.  United  States,  117  U.  S.  355,  29  L.  Ed.  920,  in  the  con- 
struction of  the  act  of  Congress  of  July  1, 1862,  relative  to  the 
Union  Pacific  Railway  company,  and  applied  to  the  construc- 
tion of  the  second  section  of  the  Interstate  Commerce  Act  in 
the  Import  Rate  case,  162  U.  S.  197,  40  L.  Ed.  940.  It  is  not  only 
in  the  presence  of  competition,  but  also  in  the  increased  cost  of 
service,  resulting  from  stoppages,  that  the  conditions  of 
through  and  local  traffic  are  substantially  dissimilar.  Chicago 
etc.  P°  R.  Co.  v.  Tompkins,  176  U.  S.  167,  44  L.  Ed.  417.  See 
supra: 

151.  Competition  of  carriers  does  not  make  circumstan- 
ces dissimilar  under  section  2.— These  words  as  used  in  sec- 
tion 2  refer  to  the  matter  of  carriage,  and  do  not  include  com- 
petition, that  is,  discrimination  between  individuals  is  not 
justified  by  the  fact  of  competition   with  other  carriers  influ- 


8  151.]  INTERSTATE    COMMERCE    ACT.  11*1 

encing  the  lower  charge.  Thus,  in  Wight  v.  United  States, 
$upra,  the  Court  sustained  the  conviction  of  a  railroad  agent 
for  making  to  a  consignee  who  had  a  siding  connection  with  a 
competing  railroad,  an  allowance  or  rebate  for  the  expense  of 
cartage  from  its  own  station.  It  was  urged  that  the  party  who 
did  not  have  this  connection  would  have  to  go  to  the  expense 
of  cartage  by  whichever  road  he  transported,  and  that  there- 
fore the  traffic  was  not  under  the  same  circumstances  and  con- 
ditions within  the  terms  of  section  2.  But  the  Court  said  that 
the  wrong  prohibited  by  the  section  was  a  discrimination 
between  shippers,  and  that  the  service  in  transporting  to  the 
station  from  the  point  of  shipment  was  precisely  the  same  to 
each  shipper.  The  Court  concluded:  "It  maybe  that  the 
phrase  '  under  substantially  similar  circumstances  and  condi- 
tions,' found  in  section  4  of  the  act,  and  where  the  matter  of 
the  long  and  short  haul  is  considered,  may  have  a  broader 
meaning  or  wider  meaning  than  the  same  phrase  found  in 
section  2.  It  will  be  time  enough  to  determine  that  question 
when  it  is  presented.  For  this  case  it  is  enough  to  hold  that 
that  phrase,  as  found  in  section  2,  refers  to  the  matter  of  car- 
riage, jmd  does  not  include  competition. "  It  was  determined 
in  other  cases  before  the  court  construing  section  4  that  the 
term  "  under  substantially  similar  circumstances  and  condi- 
tions "  in  the  latter  section  did  have  a  broader  meaning  and 
did  include  competition  as  creating  dissimilarity  of  circum- 
stances and  conditions.     See  section  4,  infra. 

The  construction  of  the  section  in  the  Wight  Case  prevents 
a  carrier  from  making  a  concession  to  secure  a  business,  which 
it  could  not  otherwise  secure,  if  that  concession  makes  an  in- 
quality  in  rates  between  shippers  for  the  same  service.  Com- 
peting shippers  in  this  case  were  not  in  fact  injured  by  the  con- 
cession, as  they  were  compelled  to  pay  for  cartage  in  any  event. 
The  only  effect  was  to  give  the  shipper  two  competing  lines 
at  the  same  rate,  and  to  give  the  carrier  an  opportunity  to 
handle  traffic  from  which  otherwise  it  was  cut  off.  While  it  could 
have  been  contended  that  the  circumstances  were  substantially 
dissimilar,  and  that  such  a  discriminative  rate  for  the  purpose 
of  securing  business  wTas  not  within  the  intent  of  the  section, 
the  construction  declared  in  this  case  makes  such  a  concession 
unlawful,  although  extended  to  all,  "similarly  circumstanced," 
that  is,  to  all  making  the  same  shipment. 


L92  INTERSTATE    COMMERCE    ACT.  [SECTION    2. 

§  152.  The  Party  Rate  case. —  It  was  ruled  by  the  Commis- 
sion, 1  I.  C.  C.  R.  208, 1  Int.  Com.  Rep.  611,  that  under  this 
section  reduced  land  explorer's  tickets  and  settler's  tickets, 
and  special  rates  to  immigrants,  3  I.  C.  C.  R.  652,  2  Int.  Com. 
Rep.  804,  were  illegal  as  discriminating  under  this  section. 
The  same  ruling  was  made  in  the  case  of  party  rate  tickets, 
that  is,  tickets  sold  at  reduced  rates  and  entitling  a  number  of 
persons  to  travel  together  on  a  single  ticket  or  otherwise,  were 
an  unjust  discrimination  against  other  passengers  and  illegal. 
This  ruling  however  was  disapproved  by  the  Circuit  Court,  43 
Fed.  Rep.  37,  and  also  by  the  Supreme  Court  in  what  is  known 
as  the  Tarty  Rate  case,  145  U.  S.  263,  36  L.  Ed.  703.  The  latter 
court  said  that  party  rate  tickets  which  were  used  principally 
by  theatrical  and  operatic  companies  for  transportation  of  their 
troups,  would  hardly  fall  within  the  meaning  of  mileage  or 
excursion  or  commutation  tickets  within  the  exception  of  sec- 
tion 22,  but  that  did  not  make  the  tickets  unlawful.  The  un- 
lawfulness defined  by  section  2  consisted  in  an  unjust  discrim- 
ination. It  was  the  object  of  section  22  to  settle  beyond  all 
doubt  that  the  discrimination  between  certain  persons  therein 
named  should  not  be  deemed  unjust;  but  it  did  not  follow  that 
there  might  not  be  other  classes  of  persons  in  whose  favor  such 
discrimination  was  made  without  such  discrimination  being 
unjust,  and  that  the  section  was  illustrative  rather  than 
exclusive.  The  object  of  such  party  rate  tickets  was  to 
induce  more  people  to  travel  and  to  secure  patronage  that 
would  not  otherwise  be  secured.  After  a  review  of  the 
English  cases  construing  the  English  act  of  1854,  the  court  said 
that  the  substance  of  all  those  decisions  was  that  the  railroad 
companies  were  only  bound  to  give  the  same  terms  to  all  per- 
sons alike  under  the  same  circumstances  and  conditions,  and 
that  any  fact  that  produced  change  in  condition  and  different 
circumstances  and  conditions  justifies  an  inequality  of  charge. 
!"»:{.  Wholesale  and  retail  rates  in  freight  traffic. —  In 
the  case  of  Hoover  v.  Pennsylvania  Railroad  Co.,  sapra,  the 
court  based  its  ruling  upon  this  Party  Rate  decision,  and  ap- 
plied the  principle  to  a  discrimination  in  favor  of  manufactur- 
ing industries  which  would  contribute  to  the  business  of  the 
railroad.  In  one  of  the  early  cases  before  the  Commission,  the 
Providence  Coal   Company  case,   L  C.  C.  R.  107,  1  Int.  Com. 


§  153.]  INTERSTATE    COMMERCE    ACT.  193 

Hep.  303,  decided  in  1887  soon  after  the  organization  of  the 
Commission,  it  was  held  in  an  opinion  by  Judge  Cooley,  that 
the  analogy  of  wholesale  and  retail  purchasers  of  merchandise 
could  not  be  extended  to  a  discrimination  in  freight  rates 
based  solely  upon  the  amount  of  shipment.  The  cases  were 
not  analogous,  since  the  naming  of  the  quantity  of  freight 
which  should  be  compared  to  wholesale  purchasers  must 
necessarily  be  altogether  arbitrary.  In  this  case  a  discount  of 
ten  per  cent  was  allowed  on  30,000  tons,  and  it  seemed  there 
was  only  one  dealer  who  could  make  that  shipment.  Judge 
Cooley  added:  "A  railroad  company  if  allowed  to  do  so  might 
in  this  way  hand  over  the  whole  trade  along  its  road  to  a 
single  dealer,  for  it  might  at  law  make  a  discount  equal  to  or 
greater  than  the  ordinary  profit  in  trade,  and  competition  by 
those  who  would  not  get  the  discount  would  then  be  out  of 
the  question."  The  30,000  ton  limit  was  unreasonable  and  un- 
lawful because  necessarily  resulting  in  unjust  discrimination. 
It  was  said  also  that  the  distinction  between  carload  and  less 
than  carload  lots  was  readily  understood  and  appreciated,  but 
that  discrimination  must  be  based  on  the  distinction  involved 
in  the  cost  of  handling. 

This  ruling  of  the  Commission,  it  will  be  seen,  is  in  harmony 
with  the  recent  trend  of  judicial  opinion  as  to  the  common 
law  right  of  discrimination;  that  is,  that  it  must  be  based  upon 
a  difference  of  the  cost  of  service,  and  not  upon  the  mere  fact 
of  a  larger  shipment.  This  was  directly  ruled  in  United 
States  v.  Tozer,  39  Fed.  Rep.  369,  eastern  district  of  Missouri, 
in  a  case  where  the  defendant,  a  railroad  agent,  was  indicted 
for  paying  rebates  in  violation  of  section  2  of  the  act.  The 
court,  Thayer,  J.,  charged  the  jury  that  the  fact  that  the  de- 
fendants received  much  more  traffic  from  one  shipper  than 
from  another  did  not  make  the  circumstances  and  conditions 
under  which  the  two  services  were  rendered  substantially  dis- 
similar. 

It  will  be  observed  however  that  the  discrimination  in 
favor  of  the  larger  shipper  could  in  some  cases  be  justified  on 
the  ground  of  a  difference  in  the  cost  of  service,  as  it  is  re- 
cognized that  as  a  rule  the  proportionate  expense  of  handling 
and  carriage  is  reduced  with  the  increase  of  quantity.  Di- 
vested of  all  considerations  of  public  policy,  a  carrier  might 

13 


19i  INTERSTATE    COMMERCE    ACT.  [SECTION    2. 

well  afford  to  give  a  special  rate  in  view  of  the  assurance  of  a 
certain  quantity  for  shipment.  This  was  recognized  in  the 
Nicholson  v.  G.  W.  R.  Co.  case,  supra.  The  realhr  controlling 
consideration  is  that  of  public  policy  in  this  refusal  to  apply 
the  analogy  of  wholesale  and  retail  sales  to  freight  rates.  It 
is  because  the  power  to  discriminate  in  favor  of  a  larger  ship- 
per, whatever  the  business  inducement,  is  necessarily  injurious 
to  business  competitors  who  cannot  make  such  shipments,  and 
therefore  tends  to  monopoly. 

§  154.  Wholesale  rates  in  freight  and  passenger  traffic 
distinguished. —  There  is  another  ground  however  for  the 
clear  differentiation  of  discrimination  in  passenger  rates  on 
the  basis  of  the  number  carried  in  party  rate  tickets,  from  a 
like  discrimination  in  the  case  of  freight  rates.  No  one  is  in- 
jured or  can  be  injured  by  the  issue  of  passenger  tickets  at  a 
reduced  rate,  whereas  in  the  case  of  freight  rates  based  upon 
the  amount  of  shipment,  the  effect  might  be  to  put  out  of  busi- 
ness all  but  the  favored  shipper  whose  business  was  large 
enough  to  ship  the  requisite  amount.  This  distinction  was 
commented  upon  by  the  Supreme  Court  in  the  Party  Kate  case, 
where  the  court  said  at  page  280:  "  If  for  example  the  rail- 
road makes  the  public  generally  a  certain  rate  of  freight  and 
to  a  particular  individual  residing  in  the  same  town  a  reduced 
rate  for  the  same  class  of  goods,  this  may  operate  as  an  undue 
preference,  since  it  enables  the  favored  party  to  sell  his  goods 
at  a  lower  price  than  his  competitors,  and  may  enable  him  to 
obtain  a  complete  monopoly  of  that  business.  Then  if  the 
same  reduced  rate  be  allowed  to  everyone  doing  the  same 
amount  of  business,  such  discrimination  may  if  carried  too  far 
operate  unjustly  upon  the  smaller  dealers  engaged  in  the  same 
business,  and  enable  the  larger  ones  to  drive  them  out  of  the 
market.  The  same  result  however  does  not  follow  from  the 
sale  of  tickets  for  a  number  of  persons  at  a  less  rate  than  for 
a  single  passenger;  it  does  not  operate  to  the  prejudice  of  the 
single  passenger,  who  cannot  be  said  to  be  injured  by  the  fact 
that  another  is  enabled  at  a  particular  instance  to  travel  at  a 
less  rate  than  he.  If  it  operates  unjustly  toward  any  one,  it  is 
the  rival  road  which  has  not  adopted  corresponding  rates;  but 
as  before  observed,  it  was  not  the  design  of  the  act  to  stiffle 
competition,  nor  is  there  any  legal  injustice  in  one  person's 
procuring  a  particular  service  cheaper  than  another." 


§§  155,  156.]  INTERSTATE    COMMERCE    ACT.  195 

§  155.  Discrimination  not  unjust  when  based  on  special 
service. — While  discrimination  based  merely  on  the  quantity 
shipped  is  not  justified,  discrimination  is  proper  when  it  is 
based  on  a  difference  in  the  cost  of  handling.  In  any  event 
however,  whatever  the  basis,  the  reduced  rate  must  be  open  to 
all  alike  complying  with  the  same  conditions,  and  the  rate 
must  be  published  as  provided  in  section  6.  Thus  if  any  acces- 
sorial services  are  rendered  by  the  carrier,  such  as  cartage,  the 
circumstances  and  conditions  are  clearly  dissimilar.  See  De- 
troit, Grand  Haven  &  Milwaukee  Kailroad  Co.  v.  Interstate 
Commerce  Commission,  supra. 

"Where  a  special  service  is  required  of  the  carrier,  such  as 
rapid  transit  and  speedy  delivery,  or  refrigeration  in  transit,  a 
higher  rate  than  for  ordinary  freight  is  warranted.  If  the 
carrier  charging  a  rate  for  such  special  service  fails  to  render 
it,  to  the  damage  of  the  shipper  and  without  legal  excuse,  the 
remedy  of  the  latter  is  by  proper  proceeding  at  law.  5  I.  C.  C. 
R.  529,  4  Int.  Com.  Rep.  205 ;  4  I.  C.  C.  R.  588,  and  3  Int. 
Com.  Rep.  554. 

TJajs  principle  was  applied  in  a  recent  case,  Wilson  v.  Atlan- 
tic Coast  Line  R.  Co.,  129  Fed.  Rep.  774,  where  it  was  held 
that  a  railroad  company  was  not  required  as  a  common  carrier 
to  take  a  circus  train,  a  part  of  which  is  loaded  with  wild  ani- 
mals, and  transport  the  same  over  its  line,  but  it  may  refuse  to 
transport  such  train  except  under  special  contract  limiting  its 
liability  from  that  ordinarily  assumed  by  a  common  carrier. 
See  also  Chicago,  Milwaukee  &  St.  Paul  R.  Co.  v.  Wallace,  66 
Ted.  Rep.  506,  14  C.  C.  A.  257,  7th  Circuit,  and  30  L.  R.  A. 
161.  In  these  cases  the  question  was  one  of  the  right  of 
the  carrier  to  make  special  contracts  for  such  special  class  of 
freight  and  to  become  in  effect  private  carriers  thereof.  It 
would  follow  that  the  carrier  would  have  a  right  to  make  spe- 
cial charges  therefor  without  unjust  discrimination. 

§  156.  Carload  and  less  than  carload  rates. — The  phrase 
"  under  similar  circumstances  and  conditions  "  has  always  been 
discussed  with  reference  to  the  proper  unit  of  freight  charges, 
whether  carload  or  less  than  carload,  and  of  the  proper  basis 
for  discrimination  between  carload  rates  and  less  than  carload 
rates.  It  will  be  seen  that  on  this  point  the  interest  of  locali- 
ties is  directly  involved.  Thus  the  great' centres  of  distribu- 
tion opposed  the  differential  for  the  sake  of  encouraging  less 


196  INTERSTATE    COMMERCE    ACT.  [SECTION    2 

than  carload  shipments  to  other  parts  of  the  country,  while 
shippers  at  interior  points,  desiring  themselves  to  distribute  to 
their  respective  territories,  strongly  favored  a  liberal  differen- 
tial between  the  carload  and  less  than  carload  rate. 

This  subject  was  exhaustively  considered  in  the  Thurber 
case,  3  I.  C.  C.  R.  478,  2  Int.  Com.  Rep.  742,  Although  it 
was  contended  by  the  western  jobbers  that  the  carload  rate 
was  the  proper  and  recognized  unit,  the  Commission  said  that 
it  was  a  sound  rale  for  the  carriers  to  adapt  their  classification 
to  the  laws  of  trade.  If  an  article  moves  with  sufficient  vol- 
ume and  the  demands  of  commerce  will  be  better  served,  it  is 
reasonable  to  give  it  a  carload  classification  and  rate.  The 
carload  is  probably  the  only  practicable  unit  of  quantit}r,  and 
the  fact  that  an  antecedent  condition,  when  no  such  distinction 
existed  and  perhaps  was  not  required,  furnish  no  argument  for 
a  return  to  a  condition  no  longer  suited  to  the  requirements  of 
business.  It  was  therefore  impracticable  and  would  seriously 
demoralize  classification  in  business  to  attempt  to  restore  equal 
rates  for  carload  and  less  than  carload  shipments  in  respect  of 
goods  properly  so  classified.  It  was  said  however  that  the 
public  was  more  largely  interested  in  miscellaneous  than  in 
carload  shipments  of  any  one  kind  of  traffic,  and  that  differ- 
ences ranging  from  forty  to  one  hundred  per  cent,  between 
the  carloads  and  less  than  carloads  were  unreasonable  and 
unjust  especially  upon  articles  of  general  and  necessary  use,  as 
so  great  a  difference  would  be  destructive  of  competition 
between  large  and  small  dealers. 

AVhile  the  circumstances  and  conditions  in  respect  to  the 
work  done  by  the  carrier  and  the  revenue  earned  are  dissimilar 
in  the  transportation  of  freights  in  carloads  and  less  than  car- 
loads, and  a  lower  rate  on  carloads  than  on  less  than  carloads 
is  therefore  not  in  contravention  of  the  statute,  yet  the  differ- 
ence between  the  two  rates  must  be  reasonable.  9  I.  C.  C.  R.  78. 

See  also  9  I.  C.  C.  R.  318,  where  the  Commission  discussed 
the  proper  differential  between  carload  and  less  than  carload 
rates  from  the  middle  west  to  the  Pacific  coast. 

The  determination  of  what  commodities  are  properly  al- 
lowed carload  rates  may  involve  the  matter  of  undue  prefer- 
ence against  particular  kinds  of  traffic  under  sec.  3.  See  4  I.  C. 
C.  It.  212,  3  Int.  Com.  Rep.  257,  and  infra,  §  206. 


§  157.]  INTERSTATE    COMMERCE    ACT.  197 

§157.     Discrimination  in  application  of  carload  rates. — 

In  9  I.  0.  0.  JR.  620,  the  Commission  discussed  the  right  of  a 
carrier  in  according  a  carload  rating  to  look  beyond  the  trans- 
portation itself  to  the  ownership  of  the  property  transported. 
The  railroad  in  that  case  declined  to  allow  a  combination  of 
carriages  in  carload  lots  at  carload  rates,  and  insisted  on  al- 
lowing the  carload  rate  only  where  the  shipment  was  from  one 
consignor  to  one  consignee,  thus  denying  the  right  of  a  for- 
warding agent  shipping  the  goods  of  different  parties  at  a  car- 
load rate.  The  Commission  ruled  that  there  should  be  no  dis- 
crimination between  consignor  and  consignee  in  the  allowance 
of  carload  rates,  when  the  conditions  of  the  ownership  after 
the  property  was  delivered  to  the  carrier  was  the  same.  But 
no  opinion  was  expressed  on  the  further  question  whether  the 
carrier  could  distinguish  between  a  forwarding  agent  and  the 
actual  owner. 

In  Lundquist  v.  Grand  Trunk  Railway  Co.,  121  Fed.  Rep. 
915,  it  was  held  that  a  carrier  could  properly  distinguish  be- 
tween the  forwarding  agent  and  the  owner  of  the  property, 
and  could  apply  the  carload  rating  when  the  goods  were  ten- 
dered for  shipment  by  the  owner  and  refuse  it  when  the  like 
traffic  was  offered  by  the  forwarder.  The  Court  said  however 
that  it  was  "  a  pioneer  case,  and  little  aid  could  be  obtained 
from  authoritative  sources."  A  different  ruling  was  made  in  En- 
gland as  to  the  English  statute,  Great  Western  Railroad  v. 
Sutton,  L.  Rep.  III.  L.  238,  the  court  holding  that  like  circum- 
stances referred  to  the  carriage  of  the  property  and  that  the 
carrier  could  not  impose  a  higher  rate  when  offered  by  an 
agent  than  when  offered  by  the  owner.  In  the  Lundquist  case 
the  court  said  that  the  English  staute  was  much  more  explicit 
in  its  terms  than  the  Interstate  Commerce  Act,  in  that  it 
provided  that  all  toll  should  be  charged  equally  to  all  persons  ; 
but  even  if  it  were  not  so,  it  was  not  probable  that  our 
courts  would  be  called  upon  to  follow  the  English  courts,  as 
the  cases  were  so  different.  It  would  seem,  however,  doubtful 
whether  the  employment  of  a  forwarding  agent  constitutes  a 
difference  in  the  circumstances  and  conditions  warranting  dis- 
crimination by  the  carrier. 

The  right  to  make  carload  and  less  than  carload  rates  car- 
ries with  it  the  right  of  the  carrier  to  fix  the  minimum  rate 


10S  INTERSTATE    COMMERCE    ACT.  [SECTION    2. 

and  charge  for  the  transportation  of  less  than  carload  ship- 
ments on  account  of  the  necessary  expense  and  trouble  attend- 
ing the  carriage  of  such  shipments,  which  aside  from  the  actual 
manual  labor  involved  are  practically  the  same  irrespective  of 
the  bulk  of  the  package.  The  question  in  such  cases  is  whether 
or  not  the  rate  is  reasonable  and  not  unjustly  discriminative. 
In  10  I.  C.  C.  R.  412,  it  was  ruled  that  the  minimum  charge 
upon  any  single  shipment  of  freight  should  be  for  one  hundred 
pounds  and  that  the  class  or  commodity  rate  of  a  certain  prop- 
erty was  not  unreasonable  or  unjustly  discriminative  in  its  ap- 
plication to  the  traffic  in  question. 

§158.  Cargo  rates  discriminative. — The  principle  of  the 
carload  as  the  only  practicable  unit  of  quantity  was  discussed 
in  7  I.  C.  C.  R.  21S,  where  it  was  strongly  intimated,  though 
not  finally  decided,  that  a  lower  rate  made  by  the  carrier  on 
cargo  lots,  being  ten  thousand  bushels  of  oats  and  eight  thous- 
and bushels  of  other  grains,  than  on  carload  lots  in  export 
shipments,  or  in  shipments  made  to  the  seaboard  for  export, 
violated  the  rule  of  equality  and  constituted  an  unjust  dis- 
crimination. It  was  said  that  this  limit  of  the  lower  rate 
would  require  about  ten  carloads,  and  that  the  effect  would  be 
to  throw  the  business  into  the  hands  of  the  large  dealers,  the 
margin  of  profit  being  very  small  and  the  opportunity  afforded 
for  the  manipulation  of  prices  at  seaboard  points  would  be  in- 
creased. 

As  to  discrimination  based  on  differential  in  favor  of  ten 
carloads  of  cattle,  see  10  I.  C.  C.  R.  327. 

Any  regulation  not  justified  by  the  increased  cost  of  service 
and  which  tends  to  discriminate  between  shippers  according 
to  the  amount  of  traffic  is  unreasonable.  Thus  making  cer- 
tain charges  for  the  transportation  of  coal  shipped  in  carloads 
when  the  coal  is  loaded  by  tipple,  that  is  from  platforms  and 
chutes,  and  exacting  a  higher  charge  when  it  was  loaded  in 
some  other  way.  and  for  that  reason  was  found  in  101.  C.  C.  R. 
226  not  to  be  justified  by  a  difference  in  the  cost  to  the  car- 
rier and  that  the  higher  rate  was  discriminatory  against  the 
small  shippers. 

§  159.  Different  forms  of  discrimination. —  Any  special 
rate,  rebate,  drawback  or  other  device,  whereby  discrimination 
is  effected,  is  prohibited.     Thus  there  may  be  discrimination 


§  159.]  INTERSTATE    COMMERCE    ACT.  199 

in  the  service  of  cars,  9  I.  C.  C.  E.  207;  in  the  manufacturer's 
rate  on  coal,  5  I.  C.  C.  R.  466,  4  Int.  Cora.  Rep.  157;  in  rebates 
for  the  use  of  live  stock  or  private  cars,  4  I.  C.  C.  R.  630,  3 
Int.  Com.  Rep.  502;  or  in  the  exaction  of  unreasonable  rent  for 
private  cars,  4  I.  C.  C.  R.  131,  3  Int.  Com.  Rep.  162.  All  forms 
of  secret  rates  and  drawbacks  are  prohibited,  1  I.  C.  C.  R.  480, 
1  Int.  Com.  Rep.  764.  Discrimination  may  be  effected  by  unjust 
classification,  4  I.  C.  C.  R.  535,  3  Int.  Com.  Rep.  460;  or  by 
commissions  paid  to  soliciting  agents,  2  I.  C.  C.  R.  513,  2  Int. 
Com.  Rep.  340;  also  combination  rates  less  than  tariff  rates 
are  illegal,  2  1.  C.  C.  R.  1,  2  Int.  Com.  Rep.  1.  Any  form  of 
discriminating  preference  is  in  violation  of  the  statute,  2  I.  C. 
C.  R.  90,  2  Int.  Com.  Rep.  67. 

Discrimination  violative  of  this  section  may  be  effected 
through  underbilling  the  weight  of  freight,  or  giving  it  a  false 
classification,  whereby  less  compensation  is  paid  by  one  per- 
son than  by  another  for  a  like  and  contemporaneous  service. 
In  the  report  of  the  Commission  upon  this  subject,  supra,  in 
1S8$,  it  was  said  that  this  method  of  discrimination  had  been 
extensively  employed,  and  it  reviews  the  evidence  taken  by 
the  Commission  in  their  investigation.  Under  the  recommenda- 
tion of  the  Commission,  section  10  of  the  act  was  amended,impos'- 
ing  penalties  upon  the  shipper  who  by  false  classification,  false 
weighing,  or  false  report  of  weight,  or  by  other  devices,  know- 
ingly or  wilfully  obtain  transportation  of  their  property  at 
less  than  the  regular  rate.  See  infra,  section  10.  As  to  dis- 
crimination in  billing  at  net  weight,  see  4  I.  C.  C.  R.  87,  3  Int. 
Com.  Rep.  131 ;  9  I.  C.  C.  R.  440. 

Another  form  of  discrimination  is  in  the  use  of  private  cars 
as  where  freight  cars  are  either  owned  by  the  shipper  or  a  pri- 
vate car  line.  See  supra,  section  118.  The  Commission  says  in 
its  annual  report  for  1904  that  the  private  car  may  be  of  ad- 
vantage to  the  carrier  by  enabling  it  to  provide  equipment  for 
special  service  during  limited  periods  and  the  equipment  is 
likely  to  be  more  adequate  for  the  public,  than  for  the  carrier 
to  undertake  to  own  the  cars  itself  or  to  secure  them  from  its 
own  connections.  Concessions  however  were  made  in  the  use 
of  such  charges  to  particular  shippers  which  amounted  to  the 
payment  of  a  rebate,  and  that  when  the  owner  of  the  car  be- 
came a  dealer  in  the  comraodit}7  transported,  the  fact  of  own- 
ership gave  him  an  important  advantage  over  his  competitor. 


liUO  INTERSTATE    COMMEBCE    ACT.  [SECTION    2. 

§  160.  Discrimination   through    interest  in   connecting 

company. —  Another  device  for  effecting  discrimination  is 
through  the  making  of  a  joint  rate  with  a  connecting  railroad 
controlled  by  the  shipper  out  of  proportion  to  the  value  of  the 
service  and  constituting  in  effect  a  rebate  to  the  shipper. 
This  was  illustrated  in  the  Hutchinson  Salt  case,  10  I.  C.  C.  R 
1.  where  the  Commission  found  that  the  connecting  railroad 
did  not  own  any  equipment  or  rolling  stock  and  was  not  in 
any  way  engaged  as  a  common  carrier,  and  that  the  granting 
of  the  division  of  the  through  rate  to  this  connecting  company 
was  a  mere  subterfuge  to  give  a  concession  in  the  rate  and 
was  an  unlawful  discrimination.  In  another  salt  case  in- 
volving the  transportation  of  salt  westward  from  points  in 
.Michigan,  where  a  similar  charge  was  made  as  to  the  alleged 
interest  of  the  salt  producer  in  a  boat  line  on  Lake  Michigan, 
10  I.  C.  C.  li.  14s.  the  Commission  found  on  investigation  of 
the  facts  that  the  share  of  the  through  rate  allowed  to  the 
boat  line  was  not  so  disproportionate  as  to  amount  to  a  rebate, 
and  therefore  that  the  discrimination  was  not  established. 
Discrimination  through  the  devices  of  a  connecting  railroad 
in  the  division  of  joint  rates  was  further  discussed  by  the 
Commission  in  10  I.  C.  C.  K.  3S5,  in  an  opinion  filed  Kov.  3 
1004,  wherein  the  Commission  reported  the  results  of  invest- 
igation of  the  divisions  allowed  the  terminal  lines  in  and  about 
the  city  of  Chicago.  It  was  found  that  certain  connecting 
railroads  were  practically  controlled  by  certain  large  shippers 
and  that  the  amounts  allowed  as  divisions  of  the  through  rate 
were  so  excessive  as  to  constitute  in  effect  rebates  to  such 
shippers.  As  this  was  a  general  investigation  in  which  no 
specific  charges  had  been  formulated,  no  order  was  made. 
The  Commission  ruled  that  to  the  extent  that  these  divisions 
exceeded  the  reasonable  charge  for  the  performance  of  the  serv- 
ice, they  were  an  unlawful  preference  and  discrimination  in 
favor  of  the  shipper  owning  the  railroad.  On  this  subject  see 
also  the  report  of  the  Commission  for  1901,  pages  10  to  23. 

i  161.  Discrimination  by  carrier  in  favor  of  itself  as  a  ship- 
per.—  A  carrier  can  no  more  discriminate  in  favor  of  itself  as 
producer  and  shipper  than  in  favor  of  any  other  shipper,  said 
Judge  Cooley  in  1  I.  C  C.  \l.  296,  and  3  Int.  Com.  Eep.  302. 
There  is  however  no  federal  statute  which  forbids  interstate 


,s    161.]  INTERSTATE    COMMERCE    ACT.  201 

carriers  from  becoming  dealers  in  articles  of  transport.  Inter- 
state Commerce  Commission  v.  Chesapeake  &  Ohio  Railroad 
Co.,  128  Fed.  Rep.  59. 

There  is  a  difficulty  fn  determining  the  fact  of  discrimination 
by  a  railroad  in  its  own  favor  as  a  carrier.  Thus  in  a  proceed- 
ing against  the  Delaware,  Lackawanna  &  Western  Railroad 
Company,  3  Int.  Com.  Rep.  302,  and  41.  C.  C.  R.  206,  supra, 
it  appeared  that  the  railroad  company  kept  no  separate  ac- 
count between  itself  as  a  carrier  and  itself  as  a  shipper  of  coal, 
so  that  there  was  no  means  of  determining  whether  it  carried 
for  reduced  rates  as  a  carrier,  or  sustained  a  loss  as  a  dealer. 
The  Commission  in  that  case  held  that  it  had  no  power  to  or- 
der such  an  account  to  be  kept.  'It  could  however  determine 
whether  the  rate  charged  to  the  complainant  was  a  reasonable 
one,  and  in  determining  that  issue  it  could  determine  the  price, 
at  which  the  railroad  company  sold  its  coal,  and  the  extent  of 
its  own  profits  upon  coal  marketed  compared  with  the  rates 
charged  other  dealers  for  transportation,  or  whether  it  made 
aay  profit  at  all,  could  be  inquired  into  by  any  tribunal 
authorized  to  pass  upon  the  reasonableness  of  rates.  The 
Commission  said  in  the  former  case,  that  even  if  the  carrier 
kept  a  separate  account  showing  what  it  charged  itself  for 
transportation,  and  even  were  such  a  separate  account  re- 
quired, it  would  not  be  a  safe  guide  in  determining  whether 
the  carrier  did  or  did  not  use  its  power  as  a  carrier  oppressively. 
See  also  case  in  8  I.  C.  C.  R.  630,  another  coal  case  involving 
the  rates  fromMyrick,  Missouri,  and  from  Rich  Hill,  the  latter 
being  owned  by  the  Missouri  Pacific  Railway  Compan}r.  The 
court  held  that  the  only  remedy  available  to  the  independent 
operator  was  to  secure  a  reasonable  rate,  as  the  carrier  could 
so  adjust  its  rates  that  the  moving  of  the  coal  could  be  con- 
ducted at  a  loss,  the  profit  being  derived  from  the  carriage, 
and  in  that  event  every  mine  operating  must  operate  at  a  loss. 

In  7  I.  C.  C.  R.  33,  the  railroad  company  owned  the  entire 
stock  of  a  development  company,  which  had  been  organized 
for  the  purpose  of  holding  certain  lands  of  the  railroad  com- 
pany, and  caused  grain  to  be  purchased  in  the  name  of  the  de- 
velopment company  and  transported  over  the  lines  of  the  rail- 
road company  and  sold  upon  the  market.  The  Commission 
said  that  even  assuming  that  the  development  company  was  an 


202  INTERSTATE    COMMERCE    ACT.  [SeCTIOX    2. 

independent  entity  and  that  the  nominal  freight  charges  were 
actually  paid  by  it,  still  it  was  merely  a  tool  in  the  hands  of 
the  railroad  company  and  the  act  accomplished  was  the  act  of 
that  company.  There  was  no  fixed  rate  and  the  rate  actually 
received  was  less  than  was,  or  would  have  been,  charged  any 
other  person  for  the  same  service  under  the  same  conditions. 
Here  it  was  said  that  this  was  a  clear  violation  of  section  2. 
The  Commission  in  this  case  distinguished  the  coal  cases  above 
cited,  saying  that  in  those  cases  there  was  a  permanent  condi- 
tion which  must  be  met,  while  this  was  an  unlawful  practice 
which  must  be  stopped. 

In  the  Chesapeake  &  Ohio  Railroad  Company  case,  supra, 
there  was  a  contract  between  the  railroad  company  and  an- 
other railroad  for  the  sale  of  coal  to  be  transferred  over  its- 
line  at  a  price  less  than  the  aggregate  cost  of  the  expense  items 
and  its  own  published  freight  rates.  The  court  held  that  this 
transaction  was  not  a  violation  of  section  2  unless  the  transac- 
tion was  a  mere  device  to  cover  an  intentional  giving  of  a  less 
rate  for  carriage  to  some  than  to  others,  there  being  no  legal 
ground  for  assuming  that  the  loss  was  sustained  by  it  as  a  car- 
rier rather  than  as  a  dealer,  and  also  that  if  the  carrier  did 
not  credit  on  its  books  its  freight  accounts  with  its  pub- 
lished rate  and  did  not  charge  the  loss  to  an  account  kept  with 
the  article  dealt  in,  there  would  seem  to  be  an  apparent  violation 
of  the  2nd  and  6th  sections  of  the  Act;  but  at  most  only  a  tech- 
nical violation,  as  it  had  a  right  to  suffer  a  loss  as  a  dealer. 
The  Court  could  not  find  any  authority  for  saying  that 
the  loss  under  such  a  contract  must  necessarily  be  treated 
as  a  loss  on  carriage,  there  being  no  evidence  in  the  case  af- 
fecting the  good  faith  of  the  contract,  and  therefore  nothing 
whereon  to  base  an  inference  that  the  transaction  was  a  device 
to  evade  the  law. 

,^  102.  Discrimination  in  storage  of  goods,  etc. — Another 
form  of  discrimination  condemned  by  the  Commission  was  pre- 
sented in  the  complaint  of  the  American  "Warehousemen's 
Association,  7  I.  C.  C.  R  556,  which  set  forth  that  a  large 
number  of  railroads  unjustly  discriminated  in  offering  free 
storage  of  freight  in  various  ways  to  some  shippers  and  not  to 
others,  in  failing  to  collect  demurrage  charges  on  cars  detained 
by  favored  shippers,  by  storing  for  some  concerns  large  quan- 


§  1G3.]  INTERSTATE    COMMERCE    ACT.  203 

tities  of  freight  and  making  delivery  thereof  in  small  lots  to- 
purchasers,  and  by  assuming  expenses  of  unloading,  Loading 
and  cartage  for  some  shippers  and  not  for  others.  A  large 
volume  of  testimony  was  taken  in  different  parts  of  the 
country.  The  Commission  held  that  the  system  prevail- 
ing was  open  to  grave  abuses  and  that  the  allowance  of  such 
privileges  as  storage  and  the  like  was  clearly  forbidden  by  sec- 
tion 2  of  the  statute.  The  effect  of  allowing  special  facilities 
for  storage  was  to  provide  a  favored  shipper  with  branch  busi- 
ness houses  in  large  cities.  The  investigation  resulted  in  a 
general  order  requiring  carriers  to  state  in  their  tariffs  what 
free  storage  was  granted  and  'the  terms  and  conditions  under 
which  it  would  be  granted.  The  Commission  said  that  as  this 
procedure  had  been  recommended  by  the  Supreme  Court  in 
the  Grand  Haven  Free  Cartage  case,  it  was  all  the  more  applic- 
able in  the  case  of  storage,  which  was  expressly  mentioned  in 
the  act.  As  to  right  of  carrier  to  contract  for  storage  of 
through  grain  in  elevators  at  terminals  in  transit,  see  10  I.  C. 
C.  R  309. 

§  163.  Stoppage  in  transit  privileges. — The  privilege  of 
milling  in  transit,  that  is  of  stopping  in  transit,  for  the  purpose 
of  grinding  grain  into  Hour  or  compressing  cotton,  or  sawing 
logs  into  lumber,  at  some  point  in  transit,  and  then  shipping 
the  manufactured  or  compressed  product  forward  at  the 
through  rate,  has  been,  discussed  in  several  cases  by  the  Com- 
mission. See  infra,  §  191.  In  8  I.  C.  C.  R.  121,  the  Commission 
commended  the  practice  in  a  case  of  cotton  shipment,  saying 
that  it  benefited  both  the  railroad  company  and  the  producer 
and  tended  to  place  non-competitive  points  upon  equality  with 
more  distant  competitive  localities  from  which  lower  rates 
were  in  force.  Such  privileges  may  be  granted  or  withheld 
by  the  carrier. 

The  receiving  of  cotton  from  a  shipper  and  having  it  com- 
pressed at  a  station  en  route  and  reshipping  to  eastern  points 
at  the  rate  equal  to  the  published  through  rate  is  not  an  unlaw- 
ful discrimination  under  section  2  when  all  parties  are  entitled 
to  the  same  privilege.  Cowen  v.  Bond,  39  Fed.  Eep.  54  (So. 
Dis.  of  Miss.).  It  is  immaterial  in  such  case,  that  the  arrange- 
ments are  made  to  induce  buyers  to  believe  that  the  cotton 
was  actually  raised  in  different  localities  than  where  it  was  in 


204  INTERSTATE    COMMERCE    ACT.  [SECTION    2. 

fact  raised,  as  the  deception  could  not  be  imputed  to  the  rail- 
road company.  But  when  the  privilege  is  extended,  it  must 
be  extended  to  all  in  the  same  conditions  and  "similarly  situ- 
ated."   See  infra,  section  3. 

The  mere  fact  of  the  payment  of  a  local  rate  to  the  manufac- 
turing or  compressing  point  is  not  material,  if  there  was  from 
the  first  an  agreement  that  the  property  should  be  entitled  to 
the  privilege,  and  it  goes  forward  from  the  compressing  or 
manufacturing  point  upon  a  through  bill  from  the  point  of 
origin  to  the  destination. 

Another  application  of  the  milling  in  transit  privilege  was 
illustrated  in  10  I.  C.  C.  K.  193  in  the  making  of  a  through 
rate  on  lumber  with  allowance  of  a  proportion  of  a  rate  for 
cost  of  moving  the  lumber  by  a  "  tap  line  "  from  the  forest  to 
the  mill.  The  Commission  held  that  this  allowance  could  only 
be  made  to  another  common  carrier,  and  could  not  be  granted 
to  a  shipper  as  compensation  for  cost  of  moving  the  lumber  to 
the  mill. 

In  Lemuel  Cotton  Mills  v.  Gulf  &  S.  I.  Railroad  Co.,  the 
Supreme  Court  of  Mississippi  in  June,  1904,  37  So.  Eep- 
134,  sustained  a  right  of  recovery,  that  is,  it  held  a  petition  not 
demurable  under  a  contract  by  a  railroad  with  a  manufacturer 
about  to  erect  a  cotton  mill  to  give  it  a  milling  in  transit  rate 
not  exceeding  certain  rates  to  certain  competitive  points.  The 
court  adopted  and  followed  the  opinion  of  the  Commission  in 
the  lumber  tap  line  case  above  cited  as  to  the  legality  of  a 
milling  in  transit  rate. 

§  104.  Unlawful  discrimination  through  ah  use  of 
stoppage  in  transit  privileges. — While  the  Commission  has. 
recognized  and  approved  the  allowance  of  through  rates  in 
casss  of  stoppage  in  transit  for  purpose  of  milling  Avheat  into 
flour  and  compressing  cotton,  so  as  to  facilitate  the  movement 
of  the  great  staples  of  the  country  to  market,  this  privilege 
has  been  sought  to  be  applied  to  cases  where  there  was  no 
manufacture  or  compressing,  but  where  the  effort  was  to  se- 
cure a  through  rate  when  property  was  stored  for  a  time  at  an 
intermediate  point  on  the  through  line.  Thus  shipments  of 
grain  were  carried  to  Kansas  City  from  points  west  thereof  at 
local  rates,  and  afterwards  shipped  and  rebilled  from  Kansas 
City  to  Chicago  at  the  balance  of  the  established  through  rate 


§   165.]  INTERSTATE    COMMERCE    ACT.  205 

from  the  original  point  of  shipment  to  Chicago.  There  was 
no  agreement  for  the  through  carriage  between  the  shipper 
and  the  carrier  at  the  original  point  of  shipment,  but  the  prac- 
tice was  to  allow  the  consignee  or  other  owner  of  grain  at 
Kansas  City  to  ship  from  Kansas  City  to  Chicago  and  other- 
points  at  the  balance  of  the  through  rate  upon  presentation  of 
the  paid  expense  bill  to  Kansas  City.  The  Commission  held 
that  such  shipment  and  re-shipment  did  notconstitute  a  through 
shipment  from  the  point  of  origin  to  the  final  point  of  destina- 
tion, and  that  the  grain  so  shipped  and  re-shipped  was  not  en- 
titled to  the  benefit  of  the  through  rate  in  force  and  that  the 
shipment  from  the  point  of  origin  to  Kansas  City  was  local, 
resulting  in  the  grain  becoming  Kansas  City  grain,  and  the  fact 
that  it  had  come  from  a  point  further  west  was  no  reason  for 
applying  on  shipments  of  such  grain  from  Kansas  City  any  less 
or  different  rate  than  was  in  force  from  Kansas  City.  The 
Commission  held  that  an  indispensible  element  in  every  through 
shjpment  was  the  same— a  contract  for  such  through  service, 
and  an  agreement  between  the  parties  at  the  inception  of  the 
carriage  from  the  point  of  shipment  to  the  destination  at  the 
through  rate.  7  I.  C.  C.  E.  240.  The  same  ruling  was  made  in 
the  case  of  a  cattle  shipment.  3  I.  C.  C.  R.  450,  and  2  Int.  Com. 
Rep.  721. 

Any  devices  therefore  for  securing  a  through  rate  where  the 
shipment  is  not  in  fact  a  through  shipment,  when  specifically 
allowed  the  milling  in  transit  privilege  on  facts  not  justifying 
the  same,  would  be  an  unlawful  discrimination  and  violative 
of  this  section.     See  §  194,  Stoppage  in  Transit  Privileges. 

§165.  Unjust  discrimination  in  passenger  service.  Un- 
just discrimination  is  prohibited  in  the  transportation  of  pas- 
sengers, as  well  as  other  property.  This  section  however 
does  not  prohibit  separate  cars  for  the  white  and  colored  races, 
provided  cars  and  accommodations  equal  in  all  respects  are 
furnished  to  both  and  the  same  care  and  .protection  of  passen- 
gers observed.  1  I.  C.  C.  E.  428,  1  Int.  Com.  Eep.  719.  See  also 
1  I.  C.  C.  E.  20S,  1  Int.  Com.  Eep.  Oil. 

When  a  railroad  company  makes  a  reduction  from  regular 
passenger  fares  which  are  not  found  unreasonable,  it  may  law- 
fully require  that  a  person  desiring  to  avail  himself  of  such  re- 
duction shall  purchase  a  ticket  and  that  all  persons  not  holding: 


"206  INTERSTATE    COMMERCE    ACT.  [SECTION    2. 

such  reduced  rate  ticket  shall  pay  the  reasonable  ordinary  fare. 
10  I.  C.  ( '.  K.  217.  For  alleged  discrimination  in  parlor  car 
rates  as  between  through  and  local  passengers  not  sustained, 
see  1"  [.  C.  C.  R.  221. 

The  regulation  published  on  regular  tariff  sheets  that  the 
conductors  shall  collect  25  cents  additional  fare  on  trains 
from  passengers  without  tickets  was  not  an  unjust  discrimina- 
tion.    3  I.  C.  C.  R.  512,  2  Int.  Com.  Rep.  766. 

§  166.  Giving  passes  to  shippers  prohibited. —  A  railroad 
official  who  gives  a  pass  for  interstate  transportation  as  a 
matter  of  personal  favor,  not  within  any  of  the  exceptions 
contained  in  section  22,  violates  sections  2  and  3  of  the  act. 
(  "barge  to  Grand  Jury  (K  Dist.  of  Cal.),  G6  Fed.  Rep.  146. 
One  riding  on  a  pass  and  assuming  all  risks  of  accident  is 
bound  thereby  and  cannot  recover,  and  it  is  immaterial  that 
the  pass  was  issued  in  violation  of  the  act.  Duncan  v.  Maine 
Central  R.  R.  Co.,  113  Fed.  Rep.  503. 

It  has  been  ruled  by  the  Commission  that  the  giving  of  free 
transportation  to  shippers,  7  I.  C.  C.  R.  92,  or  any  free  trans- 
portation other  than  that  allowed  by  section  22  of  the  act  is 
illegal.     2  I.  C.  C.  R.  359  and  2  Int.  Com.  Rep.  243. 

The  Supreme  Court  has  in  recent  cases  sustained  the  validity 
of  stipulations  in  railway  passes  against  liability  for  injuries, 
where  parties  accept  the  passes  with  knowledge  of  such  con- 
ditions. See  Northern  Pacific  R.  Co.  v.  Adams,  192  U.  S.  440, 
l^  L  ed.  513,  and  Boering  v.  Chesapeake  Beech  R. Co.,  193  U. 
S.  112,48  L.Ed.  742. 

§  167.  Application  of  the  section. —  This  section  only  deals 
with  the  discrimination,  which  consists  of  the  charging  one 
person  with  a  different  compensation  than  is  charged  another 
for  a  like  and  contemporaneous  service  for  the  transportation  of 
:i  like  kind  of  traffic  under  substantially  similar  circumstances 
and  conditions.  Forms  of  discrimination  which  relate  to  the" 
furnishing  of  facilities,  such  as  car  service  and  the  like,  are 
prohibited  by  the  more  comprehensive  language  of  section  3, 
infra. 

The  mere  fact  of  the  payment  of  a  rebate  may  not  constitute 
"an  unjust  discrimination"  at  common  law,  or  under  the 
statutes,  at  least  prior  to  the  amendment  of.  1903.  Thus  it  was 
h<ld  in  a  recent  state  case,  Lemuel  Cotton  Mills  v.  Gulf,  etc. 


§  167.]  INTERSTATE    COMMERCE    ACT.  207 

R.  Co.,  37  So.  Rep.  134,  by  the  Supreme  Court  of  Mississippi, 
that  if  there  is  no  unjust  discrimination,  an  agreement  by  a 
carrier  that  they  will  carry  goods  at  a  certain  rate  and  repay 
the  shipper  a  part  thereof  as  a  rebate  after  the  shipment,  is 
not  illegal  and  the  rebate  may  be  recovered  by  the  shipper  in 
a  proper  case.  But  under  the  publication  of  rates  required 
under  section  6  of  the  Interstate  Commerce  Act  and  especial- 
ly in  view  of  the  provisions  of  the  Elkins  Act  of  February  19, 
1903  {infra),  any  deviation  from  the  published  rate  constitutes 
an  offense.  If  a  rebate  therefore  is  paid  to  one,  it  must  be 
paid  to  all  under  similar  circumstances,  and  the  rebate  must 
be  a  part  of  the  published  tariff. 

In  the  Beef  Trust  case,  Swift  v.  United  States,  supra,  the 
bill  alleged  that  the  defendants  as  a  part  of  their  unlawful 
combination  for  monopolizing  the  market,  were  obtaining  ar- 
rangements with  the  railroads  whereby  by  means  of  rebates 
and  other  devices  they  paid  less  than  the  lawful  rates  for 
transportation.  The  Supreme  Court  said  that  this  did  not 
necessarily  charge  unlawful  acts,  as  the  defendants  might 
severally  lawfully  obtain  less  than  the  lawful  rates  for  trans- 
portation if  the  circumstances  were  not  substantially  dissimilar 
for  which  the  regular  rates  were  charged,  as  if  they  furnished 
their  own  cars,  for  instance,  and  there  wTere  other  differences 
in  the  service.  But  as  the  charge  was  made  in  connection 
with  the  alleged  attempt  to  monopolize  the  market  in  viola- 
tion of  the  Anti-Trust  Act,  the  court  said  that  no  more  pow- 
erful instrument  of  a  monopoly  could  be  used  than  an  advant- 
age in  the  cost  of  transportation,  and  that  every  act  done  with 
the  intent  to  produce  an  unlawful  result  is  unlawful.  The 
charge  was  therefore  held  material  in  connection  with  the 
other  charges  in  the  bill  (See  supra,  §  68). 

This  section  of  the  statute  has  no  application  where  the 
traffic  is  of  different  kinds  and  classes  not  competitive  with 
each  other.  8  I.  C.  C.  R.  531  and  5  I.  C.  C.  R.  193,  3  Int.  Com. 
Rep.  S41.  There  is  no  discrimination  under  this  section  in 
the  case  of  impartial  action.  It  must  consist  in  doing  for  or 
allowing  to  one  party  or  place  what  is  denied  to  the  other. 
1  I.  C.  C.  R.  401,  1  Int.  Com.  Rep.  703.  A  like  hind 
of  traffic  within  the  meaning  of  this  section  does  not  mean 
traffic    that    is    identical,   but    a    kind    that   is   capable    of 


208  INTERSTATE    COMMERCE    ACT.  [SECTION    2. 

a  fair  and  just  classification.  4  I.  C.  C.  R.  447,  3  Int.  Com. 
Rep.  417.  The  section  has  no  application  to  terminal  charges 
in  different  cities,  7  I.  C.  C.  R.  513,  nor  is  there  any  unjust 
discrimination  involved  in  the  refusal  to  pay  mileage  to  a 
private  car  company.    1  I.  C.  C.  R.  132,  1  Int.  Com.  Rep.  329. 

Discriminations  based  solely  upon  the  business  motives  of 
the  shipper  are  illegal.     6  I.  C.  C.  R,  s.">. 

§  168.  Retention  of  overcharge. — The  Interstate  Commerce 
Act  does  not  recognize  indefinite  or  uncertain  transportation 
charges.  The  idea  of  unequal  compensation  for  like  service,  or 
discrimination  in  the  treatment  of  persons  similarly  situated, 
is  repugnant  to  every  requirement  of  the  law,  and  a  party  to 
an  interstate  shipment  cannot  be  excluded  by  the  carrier  from 
the  privileges  afforded  to  other  patrons  in  the  same  locality 
because  of  his  refusal  to  pay  excessive  freight  charges,  even 
though  an  agreement  to  subsequently  refund  the  excess  should 
accompany  the  demand.  6  I.  C.  C.  R.  36.  The  retention  of 
an  overcharge  has  all  the  effect  of  extortion  and  unjust  dis- 
crimination and  when  the  refund  of  an  excessive  charge  has 
been  unnecessarily  delayed  for  a  considerable  .period  the  offi- 
cials responsible  therefor  become  fairly  chargeable  with  wil- 
ful intention  to  violate  the  law. 

In  Ohio  Coal  Co.  v.  Whitcomb,  123  Fed.  Rep.  359,  Circuit 
Court  of  Appeals,  7th  Circuit,  an  extra  charge  of  two  dollars 
per  car  made  to  one  shipper  ^or  access  to  the  docks,  was  held 
under  the  facts  to  be  discriminative  under  the  Wisconsin  stat- 
ute, and  an  agreement  by  the  shipper  to  pay  the  discriminating 
charge  in  order  to  obtain  the  service  to  which  it  was  legally 
entitled  without  such  charge  did  not  estop  him  from  maintain- 
ing a  suit  to  recover  back  the  sum  so  paid. 

j<  169.  Enforcement  of  the  section. —  The  section  has  no 
application  to  cases  occurring  before  the  Act  was  passed,  1  I. 
C.  C.  R.  144, 1  Int.  Com.  Rep.  007,  that  is,  so  far  as  the  penalties 
imposed  by  the  other  sections  of  the  Act  for  violation  of  its 
provisions  are  concerned.  It  has  been  held  however  that  con- 
tracts for  rebates  made  before  the  Act  went  into  effect  were 
thereafter  incapable  of  enforcement.  So.  Wire  Co.  v.  St.  L., 
etc.  R.  Co.,  38  Mo.  App.  191. 

In  a  suit  to  recover  damages  for  alleged  discrimination,  it 
is  sufficient  to  allege  that  the  defendant  had  charged  plaintiff 


§  170.]  INTERSTATE    COMMERCE    ACT.  209 

a  given  rate  for  transportation,  and  for  like  services  under 
substantially  the  same  circumstances  and  conditions  the  de- 
fendant had  charged  another  a  less  given  rate,  or  that  plain- 
tiff was  charged  more  than  the  schedule  rate.  Kinnavey  v. 
Terminal  Railroad  Association,  SI  Fed.  Rep.  802.  In  this  case 
it  was  held  by  Adams,  J.,  of  the  eastern  district  of  Missouri, 
that  it  was  not  necessary  for  the  complainant  to  set  out  the 
facts  showing  that  the  conditions  were  similar,  but  that  it  was 
sufficient  to  allege  the  ultimate  fact  in  the  language  of  the 
statute.  The  payment  of  an  overcharge  in  such  case  is  not  a 
voluntary  payment  precluding  recovery.  L.  <V.  X.  Consolidated 
R.  Co.  v.  Wilson,  132  Ind.  517  and  IS  L.  R.  A.  105.  See  also 
Murray  v.  Chicago  &  Xorth western  R.  Co.,  35  C.  C.  A.  02, 
62  Fed.  Rep.  24,  02  Fed.  Rep.  808.  It  was  held  that  an  action 
by  a  shipper  against  a  carrier  for  unjust  discrimination  in  the 
imposition  of  freight  charges  paid  by  plaintiff,  lay  at  common 
law,  regardless  of  fraud.  In  Wight  v.  United  States,  167  U. 
S.  512,  42  L.  Ed.  258,  the  conviction  of  a  railroad  agent  for 
violation  of  this  section  in  granting  a  rebate,  was  affirmed. 

In  Union  Pacific  Railway  Company  v.  Goodrich,  149  U.  S. 
680,  37L.Ecl.  896,  the  Supreme  Court  affirmed  the  judgment  ren- 
dered in  the  Circuit  Court  under  a  Colorado  statute  for  an  un- 
just discrimination  in  intrastate  traffic,  wherein  the  damages 
were  measured  by  the  amount  of  the  rebate  allowed  a  com- 
petitor. The  court  said  that  the  plaintiff  was  entitled  to  the 
same  terms  which  the  favored  company  received,  and  damages 
to  the  exact  extent  to  which  that  Company  was  given  the  pre- 
ference. 

It  constitutes  no  defense  in  discrimination  between  persons 
that  the  privilege  may  be  withdrawn  at  will.  Butchers  & 
Drovers  Stockyards  Co.  v.  Railroad  Co.,  14  C.  C.  A.  290,  1.  c. 
297,  67  Fed.  Rep.  35. 

§170.  Enforcement  by  injunction.— It  is  now  established, 
especially  since  the  recent  Elkins  Act,  passed  February  19, 
1903,  infra,  §  310,  that  a  court  of  equity  has  jurisdiction  at  the 
instance  of  the  Government  to  restrain  a  railroad  from  dis- 
crimination in  rates  (see  opinion  of  Grosscup,  J.,  Xorthern 
District  of  Illinois,  122  Fed.  Rep.  544),  in  suits  filed  by  the 
Government  against  a  number  of  railroads  restraining  them 
from  departing  from  their  established  tariff  rates  on  the  trans- 
14 


210  INTERSTATE    COMMERCE    ACT.  [SECTION    2. 

portation  of  grain  and  grain  products,  dressed  meat  and  pack- 
ing house  products,  and  any  other  interstate  traffic  in  which 
they  might  be  engaged. 

In  this  case,  United  States  v.  Michigan  Central  Railroad  Co. 
et  al,  the  court  said  discrimination  of  the  character  alleged  in 
the  bill  was  contrary  to  the  plain  provisions  of  the  Interstate 
Commerce  Act,  and  that  upon  it  criminal  prosecutions  could  be 
maintained, and  each  grain  grower  could  individually  maintain 
a  civil  suit  for  such  damages  as  he  might  show,  and  that  where 
the  remedy  at  law  was  inadequate,  a  remedy  in  equity  must 
exist.  As  to  the  right  of  the  Government  to  maintain  such  a 
suit,  see  infra,  %  249. 

§171.  Effect  of  rebates  upon  contracts  of  affreightment. — 
In  Merchants  Cotton  Compress  Co.  v.  Insurance  Co.,  151  U.  S. 
368,  it  was  held,  that  there  was  nothing  in  the  Interstate 
Commerce  Act  which  vitiated  bills  of  lading  or  which  by  reason 
of  the  allowance  of  rebates  actually  made  would  invalidate  a 
contract  of  affreightment,  or  exempt  the  railroad  company 
from  liability  on  its  bills  of  lading.  This  was  a  suit  of  an  in- 
surance compan3T  which  had  paid  losses  claiming  to  be  subro- 
gated against  the  railroad  company  on  bills  of  lading  issued  to 
the  owners  and  consignees  of  cotton.  It  was  not  shown  that 
the  owners  or  consignees  of  the  cotton  had  knowledge  of  the 
rebate. 

§  171a.  Discrimination  in  allowance  to  private  transfer 
companies. —  The  railroads  operating  west  from  St.  Louis 
rar.  le  the  rate  on  west  bound  traffic  from  East  St.  Louis  the 
same  as  from  St.  Louis,  and  out  of  this  rate  allowed  five  cents 
per  hundred  pounds  to  transfer  companies  hauling  less  than 
carload  lots  from  East  St.  Louis  to  St.  Louis.  The  Commission 
(10  I.  C.  C.  R.  661),  without  deciding  whether  the  railroads 
could  properly  apply  the  St.  Louis  rate  to  the  station  of  a  bona 
fide  transfer  company  in  East  St.  Louis  and  absorb  the  cost  of 
transfer  to  St.  Louis,  nor  whether  by  proper  schedule  they 
could  allow  all  shippers  from  East  St.  Louis  a  fixed  sum  per 
hundred  pounds  for  transporting  their  merchandise  to  the 
stations  in  St.  Louis,  ruled  that  an  allowance  from  the  rate 
could  not  be  made  to  a  carrier  company  which  was  in  effect 
only  a  private  carrier  organized  and  doing  the  business  of  one 
shipper,  as  such  payment  would  be  in  effect  a  rebate  to  such 
shi]>pii'.  icpra,  ;.'  160.) 


INTERSTATE    COMMERCE    ACT.  211 


Section  3. 

Page 

172.  Sec.  3.  Undue  or  unreasonable  preference  or  advantage  forbid- 

den   212 

173.  Origin  of  the  section 212 

174.  Relation  to  sections  1  and  2   214 

175.  Preferences  of  localities  enforced  by  competition  are  not  un- 

just     215 

176.  Application  of  the  competition  rule  21(3 

177.  Whether  competition  is  controlling  is  a  question  of  fact 216 

178.  Discrimination  between  domestic  and  foreign  traffic  in  import 

and  export  rates  not  unjust  preference 217 

179.  Application  of  the  import  rule   to  intermediate  points  on  the 

line 219 

180.  Competition  created  by  carriers 220 

181.  The  basing  point  system  not  illegal 221 

182.  Grouping  of  rates 222 

183.  Qualifications  in  the  application  of  the  competition  rule 224 

184.  Recognition  of  natural  advantages  of  localities  not  an  unjust 

preference 226 

185.  Competing  cities  on  opposite  banks  of  rivers  227 

186.  Differentials  between  competitive  cities 228 

187.  Form  of  unjust  preference  immaterial 230 

188.  Unjust  discrimination  in  time  of  closing  freight  stations 231 

189.  Unjust  preference  in  car  service 231 

190.  Discrimination  by  carrier  in  its  own  favor 234 

191.  Unjust  preference  in  use  of  private  cars , 234 

192.  Exclusive  use  of  excursion  or  sleeping  cars  of  one  owner  . .    . .  236 

193.  Leasing  of  cars  does  not  carry  right  of  exclusive  use  by  owner.  236 

194.  Stoppage  in  transit  privileges 236 

195.  Interference  by  State  Railroad  Commission  with  proportional 

tariff  rates 237 

196.  Side  tracks  and  connections 238 

197.  Undue  preference  in  denying  shippers  the  choice  of  route 240 

198.  Undue  preference  in  arbitrary  division  of  territory. 241 

199.  Rate  wars  and  undue  preferences 242 

200.  Discrimination  in  kinds  of  traffic 243 

201.  Preferences  against  traffic,  must  involve  injury 244 

202.  A  reasonable  regulation  of  carload  weights  not  preferential. . .  245 

203.  Differentials  between  grain  and  grain  products 246 

204.  The  Commission  not  concluded  by  ruling  of  State  Commission.  247 

205.  Discrimination  in  mode  of  shipment 247 

206.  Classification 218 

207.  Consultation  of  carriers  in  classification  not  illegal  combination.  249 

208.  Undue  preference  in  classification 249 

209.  Power  of  Commission  in  correcting  classification 251 

210.  Reasonable  regulations  in  classification 252 


212  INTERSTATE    COMMERCE    ACT.  [SECTION   3. 

§  211.  Facilities  for  interchange  of  traffic 253 

212.  Exacting  prepayment  not  unjust  discrimination 254 

213.  State  control  of  interchange  of  interstate  traflic 254 

214.  State  and  municipal  control  of  terminals 255 

215.  The  charging  of  local  rates  not  an  unjust  discrimination  -.. .    .  25G 
Sift  The  ri.ulit  of  exclusive  through  routing 257 

217.  Contract  rights  of  trackage 258 

218.  Rights  of  connecting  carriersas  to  milling  in  transit  privileges.  259 

|  172.  Undue  or  unreasonable  preference  or  advantage 

forbidden.  —  Si  so.  •">.  That  it  shall  be  unlawful  for  any  com- 
mon carrier  subject  to  the  provisions  of  this  act  to  make  or 
give  any  undue  or  unreasonable  preference  or  advantage  to 
any  particular  person,  company,  firm,  corporation,  or  locality, 
or  any  particular  description  of  traffic,  in  any  respect  whatso- 
ever, or  to  subject  any  particular  person,  company,  firm,  cor- 
poration, or  locality,  or  any  particular  description  of  traffic,  to 
any  undue  or  unreasonable  prejudice  or  disadvantage  in  any 
respect  whatsoever. 

livery  common  carrier  subject  to  the  provisions  of  this  act 
shall,  according  to  their  respective  powers,  afford  all  reasona- 
ble, proper,  and  equal  facilities  for  the  interchange  of  traffic 
between  their  respective  lines,  and  for  the  receiving,  forward- 
ing, and  delivering  of  passengers  and  property  to  and  from 
their  several  lines  and  those  connecting  therewith,  and  shall 
not  discriminate  in  their  rates  and  charges  between  such  con- 
necting lines;  but  this  shall  not  be  construed  as  requiring  any 
such  common  carrier  to  give  the  use  of  its  tracks  or  terminal 
facilities  to  another  carrier  engaged  in  like  business. 

§  173.  Origin  of  the  section. — It  was  said  by  the  Supreme 
Court  in  the  Import  Rate  case,  162  IT.  S.  197,  1.  c.  222,  40  L.  Ed. 
940  that  this  section  was  modeled  upon  the  second  section  of 
the  English  act,  for  the  better  regulation  of  traffic  on  railways 
and  canals,  of  July  10,  1854,  and  the  eleventh  section  of  the 
act  of  July  21,  1873,  entitled  "An  Act  to  Make  Better  Provi- 
sion for  Carrying  into  effect  the  Railway  and  Canal  Act  of 
1854,  and  for  other  purposes  connected  therewith.1'  Section  2 
of  this  English  act  of  1851  is  as  follows,  17  and  18  Yic.  c.  31: 

u  2.  Every  railway  company,  canal  company,  and  railway 
and  canal  company,  shall,  according  to  their  respective  powers, 
afford  all  reasonable  facilities  for  the  receiving,  and  forward- 
inn  and  delivering  of  traffic  upon  and  from  the  several  rail- 
ways and  canals  belonging  to  or  worked  by  such  companies 
respectively,  and  for  the  return  of  carriages,  trucks,  boats,  and 
other  vehicles,  and  no  such  company  shall  make  or  give  any 
undue  or  unreasonable  preference  or  advantage  to  or  in  favor 
of  any  particular  person  or  company,  orauy  particular  descrip- 
:  on  of  traffic,  in  any  respect  whatsoever,  nor  shall  any  such 
company  subject  any  particular  person  or  company,  or  any 


§   173.]  INTERSTATE    COMMERCE    ACT.  213 

particular  description  of  traffic,  to  any  undue  or  unreasonable 
prejudice  or  disadvantage  in  any  respect  whatsoever;  and 
every  railway  company  and  canal  company,  and  railway  and 
canal  company  having  or  working-  railways  or  canals  which 
form  part  of  a  continuous  line  of  railway  or  canal,  or  railway 
and  canal  communication,  or  which  have  the  terminus,  station, 
or  wharf  of  the  one  near  the  terminus,  station,  or  wharf  of  the 
other,  shall  afford  all  due  and  reasonable  facilities  for  receiv- 
ing and  forwarding  all  the  traffic  arriving  by  one  of  such  rail- 
ways or  canals  by  the  other,  without  any  unreasonable  delay, 
and  without  any  such  preference  or  advantage,  or  prejudice  or 
disadvantage,  as  aforesaid,  and  so  that  no  obstruction  may  be 
afforded  to  the  public  desirous  of  using  such  railways  or  canals, 
or  railways  and  canals  as  a  continuous  line  of  communication, 
and  so  that  all  reasonable  accommodations  may,  by  means  of 
the  railways  and  canals  of  the  several  companies,  be  at  all 
times  afforded  to  the  public  in  that  behalf." 

Section  11  of  the  English  act  of  1873,  36  and  37  Yic.  c.  48, 
re-enacts  section  2  of  the  English  act  of  1851,  and  provides 
specificall}7"  for  the  enforcement  of  the  duty  of  receiving,  for- 
warding and  delivering  from  and  to  other  companies.  For 
history  of  this  second  section  of  the  English  act  of  1851,  see 
opinion  in  the  case  of  L.  &  Y.  Railroad  Co.  v.  Greenwood, 
Law  Reps.  2  B.  217,  218.  The  equality  clause  of  the  Railway 
■Clauses  Consolidation  Act  of  1845  had  been  construed  by  the 
courts  to  mean  equal  rates  for  the  carriage  of  goods  over  the 
same  portions  of  the  line,  and  did  not  apply  wmere  the  places 
over  which  the  goods  were  carried  were  not  the  same;  and 
this  restricted  application  led  to  the  more  comprehensive  pro- 
visions of  the  act  of  1851. 

It  will  be  seen  that  sec  tion  3  of  the  act  of  Congress  to  regu- 
late  commerce  inserts  the  word  "locality",  which  does  not 
appear  in  the  English  act,  so  that  any  undue  or  unreasonable 
preference  or  advantage  is  prohibited  to  any  particular  person, 
firm,  company  or  corporation  or  any  locality,  or  an}7  particular 
description  of  traffic. 

The  effect  of  the  English  cases  construing  the  preference 
branch  of  the  English  act  were  thus  summarized  by  Judge 
Jackson  in  his  opinion  in  the  Party  Rate  case  in  the  Circuit 
Court,  43  Fed.  Rep.  37,  (affirmed  by  the  Supreme  Court  in  115 
IT.  S.  263,  36  L.  Ed.  699),  quoting  from  a  report  of  the  Eng- 
lish  Amalgamation  Committee  of  1872,  page  130,  as  follows: 

"The  effect  of  the  decisions  seems  to  be  that  a  company  is 
bound  to  give  the  same  treatment  to  all  persons  equally  under 


214  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

the  same  circumstances,  but  there  is  nothing  to  prevent  a  com- 
pany, it'  acting  with  a  view  of  its  own  protit,  from  imposing 
such  conditions  as  may  incidentally  have  the  effect  of  favoring 
one  class  of  trade  or  one  town,  or  one  portion  of  that  traffic, 
providing  the  conditions  are  the  same  to  all  persons,  and  are 
such  as  lead  to  the  conclusion  that  they  are  really  imposed  for 
the  benefit  of  the  railway  company.*' 

It  was  said  by  the  Supreme  Court  in  this  case,  145  U.  S. 
263,  as  to  both  sections  2  and  3,  p.  270:  "It  is  not  all  discrim- 
inations or  preferences  that  fall  within  the  inhibition  of  the 
statutes  only  such  as  are  unjust  and  unreasonable.  *  * 
Indeed  the  possibility  of  just  discrimination  and  reasonable 
preferences  is  recognized  by  those  sections  in  declaring  what 
shall  be  deemed  unjust." 

§  1?4.  Relation  to  sections  1  and  2. —  The  first  paragraph 
of  the  section  in  its  prohibition  of  any  undue  or  unreasonable 
preference  or  advantage  to  any  particular  person,  company, 
firm  or  corporation,  or  the  subjection  of  any  particular  per- 
son, company,  firm  or  corporation  to  any  undue  or  unreasona- 
ble prejudice  or  disadvantage  in  any  respect  whatever,  is 
comprehensive  enough,  standing  alone,  to  include  the  prohibi- 
tion of  discrimination  contained  in  section  2,  and  such  is  the 
judicial  construction  in  England  of  the  term  "  undue  or  unrea- 
sonable preference  or  advantage"  as  used  in  the  English  Kail- 
way  and  (anal  Traffic  Act,  from  which  the  terms  of  this  sec- 
tion are  taken.  United  States  v.  D.  L.  &  W.  K.  Co.,  40  Fed. 
Rep.  103.  Section  3  however  is  broader  than  section  2,  in 
that  it  is  not  limited  to  a  discrimination  in  rates  alone,  but  in- 
cludes every  form  of  unjust  discrimination. 

Section  1  prohibits  unreasonable  rates  and  the  reasonableness 
of  rates  can  only  be  determined  by  the  consideration  of  whether 
rates  are  relatively  reasonable.  A  rate  which  subjects  a  per- 
son or  community  or  any  kind  of  traffic  to  any  undue  or  un- 
reasonable prejudice  or  disadvantage  is  in  that  sense  an  unrea- 
sonable rate.  Proceedings  before  the  Commission  and  the 
courts  contesting  the  rates  established  by  the  carriers  have  usu- 
ally included  sections  1  and  3  and  not  infrequently  sections  1, 
2,  3  and  4,  the  latter  when  the  long  and  short  haul  on  the 
same  line  is  involved.  Under  section  3  however,  it  is  only 
the  relative  reasonableness  of  a  rate  which  is  considered,  and 
as  cases  of  individual  discriminations  in  rates  have  been  con- 


§   175.]  INTERSTATE    COMMERCE    ACT.  215 

sidered  in  connection  with  section  2,  the  cases  grouped  under 
this  section  will  be  those  relating  to  discriminations  between 
shippers  other  than  in  rates  and  alleged  preferences  to  localities 
and  kinds  of  traffic. 

§  175.  Preferences  of  localities  enforced  by  competition 
are  not  unjust. —  Section  3  has  been  closely  related  to  section 
4  in  the  judicial  discussion  of  the  relation  of  competition  to 
preferential  rates.  Section  3  contains  the  general  prohibition 
of  undue  or  unreasonable  preference  or  advantage  to  any  local- 
ity, while  section  4  contains  the  specific  prohibition  of  any 
greater  rate  under  substantially  similar  circumstances  and  con- 
ditions for  a  shorter  than  for  a  longer  distance  over  the  same 
line.  After  the  decision  of  the  Supreme  Court  in  the  Social  Cir- 
cle case  in  1897  (162  U.  S.  184),  infra,  section  4,  it  was  held 
by  the  Commission  in  a  proceeding  involving  the  relative  rates 
to  Chattanoogo  and  Nashville  from  the  eastern  seaboard,  5  I. 
C.  C.  R.  546,  and  4  Int.  Com.  Rep.  213,  that  while  the  carrier 
had  the  right  to  judge  in  the  first  instance  whether  it  was 
justified  in  making  the  greater  charge  for  the  shorter  distance 
under  section  4,  nevertheless  the  3rd  section  of  the  act  forbid- 
ingthe  making  or  giving  of  an  undue  or  unreasonable  prefer- 
ence or  advantage  was  still  applicable,  and  that  where  such 
unjust  preference  was  created,  even  as  a  result  of  railway  com- 
petition, compelling  a  lower  charge  for  a  longer  haul,  the  car- 
rier should  apply  for  exemption  under  the  proviso  of  the  4th 
section.  This  ruling  was  sustained  in  the  Circuit  Court  and 
Circuit  Court  of  Appeals,  on  somewhat  different  grounds,  39 
C.  C.  A.  413  and  99  Fed.  Rep.  52,  but  was  reversed  in  the 
Supreme  Court,  East  Tennessee,  etc.  R.  Co.  v.  Commission, 
1S1  U.  S.  1,  45  L.  Ed.  719,  729.  The  Supreme  Court  said  that 
the  effect  of  this  ruling  of  the  Commission  was  to  blend  the 
3rd  and  4th  sections  in  such  a  manner  as  to  necessarily  destroy 
one  by  the  other.  The  prohibition  of  the  third  section  was 
directed  against  unjust  discrimination  or  undue  preferences 
arising  from  the  voluntary  or  wrongful  act  of  the  carriers 
complained  of,  and  does  not  relate  to  acts  the  result  of  condi- 
tions wholly  beyond  the  control  of  such  carriers.  Where  the 
competition  was  controlling,  the  preference  was  not  undue  or 
the  discrimination  unjust.  It  appeared  in  this  case  that  there 
was  a  margin  of  profit  in  the  rates  in  force   to  Nashville  and 


216  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

Memphis.  The  court  said  there  might  be  a  case  where  the 
carrier  could  not  be  allowed  to  avail  himself  of  the  competitive 
condition.  Thus  if  lie  could  not  meet  the  competitive  rate 
without  transporting  the  merchandise  at  less  than  the  cost  of 
transportation,  and  therefore  bringing  about  a  deficiency 
which  would  increase  charges  upon  other  business,  the  engag- 
ing in  such  competitive  traffic  would  both  bring  about  an  un- 
just discrimination  and  a  disregard  of  the  public  interest. 

The  court  said  that  the  question  whether  the  charges  were 
reasonable  or  otherwise,  and  whether  the  certain  discrimina- 
tions were  due  or  undue  were  questions  of  fact  to  be  passed 
upon  by  the  Commission  in  the  light  of  all  the  facts,  and  the 
case  was  directed  to  be  remanded  and  the  proceedings  dis- 
missed without  prejudice  to  the  rights  of  the  Commission  to 
proceed  with  the  further  investigation  of  the  facts. 

§  176.  Application  of  the  competition  rule. — The  same 
ruling  has  been  made  in  several  cases  in  the  Circuit  Courts  and 
Circuit  Courts  of  Appeal.  Thus  in  Commission  v.  Atlantic  Rail- 
way Co.  et  al,  35  C.  C.  A.  21 7,  and  93  Fed.  Rep.  S3,  the  court 
said  that  under  the  decisions  of  the  Supreme  Court  competi- 
tion was  a  factor  to  be  considered,  and  if  the  competition  was 
real  and  controlling,  it  created  substantially  different  circum- 
stances and  conditions,  and  where  such  lower  rate  was  so  in- 
duced, if  not  so  low  as  to  be  unreasonable  and  unremunerative 
to  the  carrier,  it  could  not  afford  a  basis  of  undue  aud  unreas- 
onable preferences  and  advantages  in  favor  of  the  competitive 
point  within  the  inhibition  of  the  third  section,  nor  be  unjust 
and  unreasonable  under  the  first  section  of  the  act.  It  would 
seem  -however  that  under  the  rulings  of  the  Supreme  Court 
that  even  if  the  competion  is  controlling  and  thus  creates  sub- 
stantially different  circumstance  and  conditions  justifying  the 
lower  rate  for  the  entire  haul,  and  precluding  the  inference  of 
an  unjust  preference  therefrom,  it  would  still  remain  for  the 
Commission  under  all  the  facts  to  determine  whether  the  es- 
tablished rates  were  reasonable  or  not. 

§  177.  Whether  competition  is  controlling  is  a  question  of 
fact. — When  competition  enters  into  a  case  as  an  element,  wheth- 
er or  not  there  is  an  undue  preference  or  advantage,  that  is 
whether  the  competition  iscontolling,  isaquestion  not  of  law,but 
of  fact.  Commission  v.  L.  &  X.  Railroad  Co.,  73  Fed.  Rep.  409. 
See  also  Brewer  v.  Central  Railroad  of  Georgia,  84  Fed.  Rep. 


§    ITS.]  INTERSTATE    COMMERCE    ACT.  217 

257  ;  Commission  v.  Western  Atlantic  Railroad  Co.,  88  Fed. 
Rep.  1S6;  Commission  v.  Cincinnati  &  P.  R.  Co.  et  al.,  124 
Fed.  Rep.  624. 

In  the  latter  case,  the  Commission,  9  I.  C.  C.  R.  118,  had 
found  that  the  rates  from  western  cities  to  Wilmington,  N". 
C,  were  prejudicial  and  unduly  preferential  to  Norfolk,  Rich- 
mond and  other  Virginia  cities  and  it  ordered  that  they  should 
be  made  upon  a  basis  of  125  per  cent  of  the  rates  contempo- 
raneously in  force  from  East  St.  Louis  to  Norfolk.  The  court 
refused  to  enforce  this  order,  holding-  that  the  conditions  at 
Norfolk  and  Richmond  by  reason  of  the  larger  number  of  car- 
rying lines,  both  rail  and  water,  created  a  very  active  competi- 
tion; and  furthermore,  the  fact  that  these  cities  were  in  what 
was  known  as  trunk  line  territory  and  Wilmington  was  in  what 
was  known  as  southern  territory,  where  there  were  fewer  trans- 
portation lines  and  less  active  competition,  resulting  in  higher 
rates  to  Wilmington,  although  the  length  of  haul  was  about 
the  same.  The  Commission  had  refused  to  recognize  the  higher 
preferential  rates  based  upon  location  in  the  southern  territory 
in  another  case  from  Wilmington.  See  9  I.  C.  C.  R.  17.  In  the 
latter  case  the  Commission  said  it  was  the  first  case  during  their 
fourteen  years  experience  which  showed  a  through  rate 
charge  over  connecting  roads  in  excess  of  the  combination 
charges  applying  to  and  from  an  intermediate  point  on  the 
through  line. 

As  to  the  competition  rule,  see  also  Commission  v.  L.  &  N". 
R.  Co.,  40  C.  C.  A.  685,  and  108  Fed.  Rep.  9S8,  affirmed  by  the 
Supreme  Court  in  190  U.  S.  273  and  4  7  L.  Ed.  1047. 

For  application  by  the  Commission  of  the  competition  rule 
to  alleged  preference,  see  10  I.  C.  C.  R.  29.  Where  the  prefer- 
ence in  rate  exceeds  the  competitive  rate,  there  is  as  to  such 
excess  a  case  of  undue  preference  under  this  section.  10  I.  C. 
C.  R.  342. 

§  17S.  Discrimination  between  domestic  and  foreign 
traffic  in  import  and  export  rates  not  unjust  preference. — 
An  order  was  made  by  the  Commission  in  March,  1S89,  requir- 
ing that  imported  traffic  transported  to  any  place  in  the 
United  States  from  a  port  of  entry  or  place  of  reception, 
whether  in  this  country  or  in  an  adjacent  foreign  country, 
should  be  taken  on  the  inland  tariff  covering  other  freights. 

Later,  in  June  of  the  same  year,  in  3  I.  C.  C.  R.  137,  and  2  Int. 


21S  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

Cora.  Rep.  553,  the  Commission  ruled  that  in  export  rates  the 
proper  method  was  to  add  to  the  established  inland  rates  from 
the  interior  to  the  seaboard,  the  current  ocean  rates.  The 
commission  held  that  as  ocean  rates  were  not  subject  to  the 
control  of  the  act,  they  were  not  proper  for  consideration  in 
creating  a  dissimilarity  in  circumstances  and  conditions  within 
the  meaning  of  the  act.  The  parties  to  the  Export  Rate  case 
complied  with  the  order  of  the  Commission,  but  the  import 
rate  ruling  was  contested  by  the  Texas  &  Pacific  Eailroad 
Company.  The  Commission  held  that  the  competition  of 
ocean  lines  or  circumstances  affecting  the  movement  of  foreign 
commerce  before  reaching  our  own  country  did  not  constitute 
a  dissimilarity  of  circumstances  and  conditions  within  the 
meaning  of  the  act.  Their  ruling  was  sustained  by  the  Circuit 
court  in  a  proceeding  to  enforce  the  order  of  the  Commission, 
52  Fed.  Eep.  1ST,  and  also  by  the  Circuit  Court  of  Appeals,  6C. 
C.  A.  653,  :»T  Fed.  Rep.  948.  The  latter  court  thought  that  some 
discrimination  in  rates  might  be  justified  under  the  circum- 
stances, but  that  the  rates  imposed  were  unreasonable.  The 
Supreme  Court  in  162  U.  S.  197,  40  L.  Ed.  910,  reversed  both 
courts  and  directed  the  dismissal  of  the  bill,  (Justices  Harlan, 
Brown  and  Fuller,  C.  J.,  dissenting.)  The  court  said  that  the 
purpose  of  Congress  was  to  facilitate  and  promote  commerce, 
and  not  to  reinforce  the  provisions  of  the  tariff  laws,  and  that 
the  effort  of  the  Commission  to  deprive  inland  consumers  of  the 
advantage  of  through  rates  seemed  to  create  the  mischief 
which  it  was  one  of  the  objects  of  the  act  to  remedy,  and  that 
among  the  circumstances  and  conditions  to  be  considered,  as 
well  in  the  case  of  traffic  originating  in  foreign  ports  as  in  the 
case  of  traffic  originating  within  the  limits  of  the  United 
States,  was  competition  at  the  seaports,  and  in  deciding 
whether  rates  and  charges,  made  at  a  low  rate  to  secure  for- 
eign freights  which  would  otherwise  go  by  competitive  routes 
are  or  are  not  undue  and  unjust,  the  fair  interests  of  the  car- 
rier companies  and  the  welfare  of  the  community  which  is  to 
receive  and  consume  the  commodities,  are  to  be  considered. 
The  Supreme  Court  said  that  the  fact  that  there  was  a  consider- 
able disparity  between  other  and  local  rates,  did  not  warrant 
the  Circuit  Court  of  Appeals  in  finding  that  the  disparity  con- 
stituted an   undue  discrimination,  as  no  such  issue  was  made 


§   179.]  INTERSTATE    COMMERCE    ACT.  219 

before  the  Commission,  and  the  defendant  was  entitled  to  have 
the  reasonableness  of  the  rate  considered,  in  the  first  instance 
at  least,  by  the  Commission  upon  a  full  consideration  of  all  the 
circumstances  and  conditions  upon  which  a  legitimate  order 
could  be  based.  Especially  was  this  true  when  there  was  no 
person,  firm  or  corporation  claiming  that  he  or  they  had  been 
aggrieved  by  the  disparity  in  the  rates,  the  party  complaining 
being  the  Commission  itself. 

This  decision  was  construed  as  applying  to  export  rates  as 
well  as  to  import  rates.  The  Commission  in  its  report  of  1897 
said  that  the  carriers  insisted  that  this  decision  controlled  the 
rates  for  inland  carriage  to  the  seaboard  of  traffic  for  export, 
and  recommended  that  Congress  amend  the  act  giving  the 
Commission  power  to  control  inland  rates,  both  import  and 
export,  but  no  such  amendment  has  been  enacted. 

It  is  therefore  a  question  of  fact  whether  rates  upon  export 
or  import  traffic  as  well  as  those  upon  domestic  traffic  are 
unreasonable  and  unjustly  preferential,  but  as  a  matter  of  law, 
it  is  not  any  violation  of  the  Act  for  the  carrier  to  make  a  lower 
rate  to  the  point  of  export  or  from  the  port  of  import  upon  the 
traffic  which  is  exported  or  imported  than  upon  that  which  is 
locally  consumed.     See  8  I.  C.  C.  R.  214. 

§  179.  Application  of  the  import  rule  to  intermediate 
points  on  the  line. —  It  was  ruled  by  the  Commission,  8  I.  C. 
C.  It.  214,  after  the  decision  in  the  Import  Rate  case,  that  in 
the  application  of  export  grain  rates  the  carrier  should  in  no 
case  make  the  rate  from  anj^  point  to  the  seaboard  less  than 
from  any  intermediate  point  on  the  same  line,  and  that  a  rate 
on  export  flour  from  Minneapolis  which  was  one  and  one-half 
cents  less  than  the  domestic  rate  to  the  port  of  export,  with 
no  corresponding  concessions  to  intermediate  millers,  was  an 
unlawful  discrimination,  and  that  any  line  participating  in  any 
such  lower  export  rate  on  flour  from  Minneapolis  must  make  a 
corresponding  reduction  on  the  same  article  from  all  inter- 
mediate points.     See  also  8  I.  C.  C.  R.  110,  9  I.  C.  C.  R.  534. 

As  to  the  publication  of  rates  on  export  traffic,  see  infra, 
section  6.  See  also  8  I.  C.  C.  R.  185,  and  8  I.  C.  C.  R.  110. 
The  Commission  said  in  the  case  first  cited  that  the  Import 
Rate  decision  did  not  bar  the  import  and  export  traffic  from 
the  purview  of  the  Commission,  although  it  did  require  that 


220  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

conditions  abroad  as  well  as  at  home  should  be  considered, 
and  that  the  interests  of  classes,  and  not  of  a  single  class, 
should  be  taken  into  account.     See  8  I.  C.  C.  R.  304. 

§  180.  Competiton  created  by  carriers.— In  the  Nashville 
and  ( Jhattanooga  Kate  case,  sitpra,  the  Circuit  Court  of  Appeals 
in  an  opinion  by  Judge  Taft,  1.  c.  424,  commented  upon  the 
fact  that  the  competition  at  Xashville  was  between  railroads 
under  the  same  control,  the  Louisville  &  Nashville  railroad 
owning  the  majority  of  the  stock  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railroad  Company,  and  that  but  for  the 
restriction  of  normal  competition  by  the  Southern  Traffic 
Association  the  situation  of  Chattanooga  would  win  for  her 
certainly  the  same  rates  as  Nashville.  The  Supreme  Court  in 
its  opinion  reversing  the  case,  held  that  the  Commission  and 
the  Circuit  Court  and  Circuit  Court  of  Appeals  had  proceeded 
upon  an  erroneous  construction  of  the  Act, in  holding  that  a 
preference  enforced  by  controlling  competition  could  be  unjust, 
and  that  the  assertion  that  the  road  from  Chattanooga  to  Xash- 
ville,  growing  out  of  the  stock  ownership,  was  in  effect  the  Louis- 
ville &  Nashville,  was  necessarily  antagonistic  to  the  express 
finding  of  the  commission  that  the  carriers  through  Chatta- 
nooga  and  Nashville  were  placed  in  position  where  they  must 
meet  the  competition  to  Xashville  or  abandon  all  traffic  to 
that  point.  The  court  said  that  it  could  not  undertake  the 
duty  of  weighing  the  evidence  and  determine  the  issues  of  fact 
which  the  statute  required  the  Commission  in  the  first  instance 
to  pass  upon,  and  the  case  was  therefore  directed  to  be  re-com- 
mitted to  the  Commission  for  that  purpose. 

In  Commission  v.  Southern  Railway  Co.,  117  Fed.  Rep.  741, 
the  railroad  company  had  acquired  the  ownership  of  the  only 
road  which  had  previously  competed  for  the  business  to  a  cer- 
tain point,  but  it  was  held  that  this  could  not  effect  the  ques- 
tion whether  its  rates  unjustly  discriminated  against  such  point 
in  favor  of  another  point  where  competition  existed  where  it 
affirmatively  appeared  that  the  rates  to  the  non-competitive 
point  had  not  been  increased  since  the  purchase  of  the  com- 
peting road. 

In  the  later  case  of  Interstate  Commerce  Commission  v.  L. 
&  X.  Railroad  Co.,  190  U.  S.  273,  1.  c.  p.  283,  47  L.  Ed.  1047, 
the  Supreme  Court  said  that  if  by  agreement  or  combination 


§   181.]  INTERSTATE    COMMERCE    ACT.  221 

among  carriers  it  was  found  that  at  a  particular  point,  rates 
were  unduly  influence  I  by  a  suppression  of  competition,  that 
fact  would  be  proper  to  consider  in  determining  the  question 
of  undue  discrimination  and  the  reasonableness  per  se  of  the 
rates  to  such  possible  competitive  points.  It  must  be  an  actual 
and  not  possible  competition.  See  also  infra,  section  4.  It  there- 
fore is  a  question  of  fact  to  be  determined  by  the  Commission 
whether  the  preference  is  induced  by  the  competition,  and 
whether  competition  is  forced  upon  the  carrier  or  whether  the 
preference  is  effected  through  an  agreement  or  combination 
stifling  competition.  But  if  the  preference  is  compelled  by  the 
competition,  then  it  is  not  unjust,  under  section  3,  though  the 
rates  may  still  be  unreasonable  per  se  and  on  this  ground  vio- 
lative of  section  1  of  the  act. 

§  181.  The  ''Basing  Point  System"  not  illegal.— The  Com- 
mission in  several  cases  had  condemned  what  had  been  called 
the  "Basing  Point  System"  prevailing  in  the  south,  4  I.  C.  C. 
K.  GSG,  3  Int.  Com.  Rep.  4S2  and  6  I.  C.  C.  R  342;  6  I.  C.  C. 
R  361;  8  I.  C.  C.  R  142.  This  system  consisted  in  basing 
local  rates  according  to  the  relative  distance  of  the  local  points 
by  the  distance  of  such  points  from  the  competitive  points, 
the  rate  being  ascertained  in  each  case  by  adding  to  the 
through  rate  to  the  basing  point,  the  local  rate  from  that 
point  back  to  the  local  point,  the  result  being  that  the  local 
points  were  given  an  advantage  resulting  from  their  proximity 
to  the  basing  point  in  proportion  to  the  degree  of  such  prox- 
imity. The  Interstate  Commerce  Commission  on  the  com- 
plaint of  a  merchant  of  La  Grange,  Alabama,  made  an  order 
upon  the  railroad  to  desist  from  charging  upon  this  basing  rate 
to  La  Grange  based  upon  its  rate  to  Atlanta,  the  basing  point. 
The  Circuit  Court  sustained  the  ordex  of  the  Commission.  102 
Fed.  Rep.  709.  This  judgment  was  reversed  by  the  Circuit 
Court  of  Appeals,  108  Fed.  Rep.  OSS,  and  the  judgment  of 
the  latter  court  was  affirmed  by  the  Supreme  Court,  Commis- 
sion v.  L.  &  K  Railroad  Co.,  100  II.  S.  273,  47  L.  Ed.  1047. 
The  latter  court  said  that  as  it  was  conceded  that  the  rate  on 
the  through  freight  from  New  Orleans  to  Atlanta  was  the 
result  of  competition  to  Atlanta,  there  was  a  resulting  dis- 
similarity of  circumstances  which  prevented  any  unjust  pref- 
erence in  the  fact  of  a  higher  charge  to  La  Grange  and   that 


222  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

• 

there  was  no  just  cause  of  complaint  in  giving  to  the  local  sta- 
tions the  advantage  resulting  from  their  proximity  to  Atlanta, 
the  competitive  point,  as  the  same  result  would  have  followed 
if  the  rate  had  been  fixed  at  Montgomery,  the  competitive 
point  nearer  to  Xew  Orleans,  and  the  local  rate  fixed  from 
thence  on. 

§  182,  Grouping  of  rates. —  While  section  4  of  the  act 
prohibits  under  similar  circumstances  and  conditions  the 
charging  of  a  greater  rate  for  the  shorter  distance,  there  is  no 
prohibition  against  charging  the  same  aggregate  rates  on 
like  traffic  for  the  longer  distance  over  the  same  line  in  the 
same  direction.  There  is  in  the  act  no  requirement  of  mile- 
age apportionment  of  rates.  The  Commission  in  several  cases 
has  passed  upon  the  so  called  "  group"  or  "  blanket "  rates, 
that  is,  the  making  of  the  same  rates  for  different  points  situ- 
ated on  the  same  line,  or  on  different  lines  under  the  same  control 
communicating  with  a  common  centre  and  being  the  same  or 
approximately  the  same  distance  from  such  centre  and  pos- 
sessing substantially  the  same  commercial  relations.  The 
principle  was  applied  in  2  I.  C.  C.  R.  540,  and  2  Int.  Com. 
Rep.  313,  to  a  large  number  of  mines  composing  a  coal  min- 
ing district  extending  across  the  state  of  Illinois  to  points  in 
western  Wisconsin,  Iowa  and  Minnesota,  the  distance  by 
some  part  of  the  route  being  substantially  a  fair  equivalent 
for  the  distance  from  other  points  and  the  commercial  neces- 
sities being  substantially  the  same  for  all. 

In  another  case  the  grouping  of  coal  rates  at  the  rate  of 
ninety  cents  per  ton  for  a  distance  covering  a  radius  of  forty 
miles  around  Pittsburgh,  Penns37lvania,  was  sustained.  2  I.  C. 
C.  R  61S,  2  Int.  Com.  Rep.  436.  The  Commission  said  that 
actual  undue  prejudice  or  damage  of  which  the  rate  is  the 
cause,  must  result  to  more  favorably  situated  producers  to 
render  a  group,  rate  unlawful.  In  this  case  the  Commission 
cited  the  practice  under  the  English  Railway  &  Canal  Traffic 
Act  of  1S54,  where  it  had  been  held  that  the  grouping  of 
rates  was  not  unlawful,  unless  as  a  matter  of  fact  the  effect 
was  to  produce  an  undue  preference,  and  noted  that  the  new 
English  act  of  1888  had  made  specific  provision  for  grouping 
of  rates  in  conformity  with  the  rule'  which  had  been  acted  on 
by  the  Commissioners  and  the  courts.     See  also  4  I.  C.  C.  R. 


§  182.]  INTERSTATE    COMMERCE    ACT.  223 

533,  and  3  Int.  Com.  Rep.  460,  where  grouping  of  mines  in  the 
Lehigh  anthracite  coal  reg-ion  was  held  to  involve  no  unrea- 
son  able  disadvantage. 

Thus  in  4  I.  C.  C.  R.  417,  3  Int.  Com.  Rep.  400,  it  was  found 
that  the  rates  on  wheat  and  wheat  flour  for  reasons  peculiar 
to  the  territory  lying  west  of  the  Mississippi  river  and  com- 
prising the  large  portion  of  Texas,  the  state  of  Missouri  and  a 
considerable  portion  of  Kansas,  were  grouped  without  refer- 
ence to  distance.  In  7  I.  C.  C.  R.  92,  the  subject  of  grouping 
of  rates  was  considered  in  its  application  to  the  rates  on  milk, 
which  was  fixed  at  a  uniform  rate  from  all  interstate  shipping 
stations  along  the  lines  of  the  New  York,  Susquehanna  & 
Western  Railroad  west  of  the  Hudson  river  to  the  points  of 
deliver}^  at  Weehawken,  Hoboken  and  Jersey  City.  The  Com- 
mission said,  reaffirming  G  I.  C.  C.  R.  131,  that  the  practice  of 
making  one  rate  for  the  same  product  over  a  very  large  dis- 
trict and  thus  equalizing  the  burdens  of  transportation  to  the 
same  market  was  only  justified  under  special  and  exceptional 
circumstances.  The  circumstances  in  this  case  were  peculiar, 
in  that  the  furnishing  of  an  extra  perishable  article  like  milk 
in  no  greater  quantity  than  is  required  for  daily  use  in  a  great 
city  was  a  business  which  falls  naturally  to  those  producers 
nearest  the  cit}7  who  were  able  to  provide  the  needed  supply. 
The  Commission  found  under  the  facts  that  a  uniform  or 
blanket  rate  from  all  stations  of  the  road  was  an  unreasonable 
preference  to  the  more  distant  stations,  and  said  there  should 
be  at  least  four  divisions,  extending  respectively  forty  miles, 
fifty-two  miles,  one  hundred  miles,  one  hundred  and  ninety 
miles  and  stations  beyond  one  hundred  and  ninety  miles,  with 
rates  adjusted  to  the  respective  groups  according  to  distance. 
On  this  application  of  the  grouping  of  rates  to  milk  traffic,  see 
2  I.  C.  C.  R.  272,  and  2  Int.  Com.  Rep.  162. 

In  5  I.  C.  C.  R.  478,  and  4  Int.  Com.  Rep.  183,  "blanket"  or 
group  class  rates  applying  upon  the  Northern  Pacific  road  for 
a  distance  of  over  five  hundred  and  eighty  miles  were  found 
relatively  unreasonable. 

In  7  I.  C.  C.  R.  43,  group  rates  of  seventy  per  cent,  on  sec- 
ond class  articles  and  forty-four  per  cent,  on  third  class  apply- 
ing within  a  distance  of  two  hundred  and  seventy-one  miles 
from   Pritchard,  Alabama,  to  Verona,    Mississippi,    on   ship- 


224  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

ments  over  an  extreme  distance  of  six  hundred  and  forty  miles 
to  East  St.  Louis,  and  which  in  the  next  two  hundred  miles 
fall  to  thirty  per  cent,  on  second  class  and  twenty-two  per 
cent,  on  the  third  class,  were  held  prima  facie  unreasonable 
and  unjustly  discriminative  against  points  within  the  group 
which  were  nearer  to  East  St.  Louis,  and  unfair  as  to  ship- 
ments from  Verona.  The  Commission  said  however  that  there 
were  probably  circumstances  under  which  a  group  rate  of  this 
kind  might  be  justifiable,  and  no  order  was  made  pending  an 
opportunity  for  the  defendant  to  readjust  its  group  scale,  or 
justify  the  apparent  discrimination. 

§  ls:>.  Qualifications  in  the  application  of  the  competition 
rule.— The  judicial  construction  of  the  term  "unjust  prefer- 
ence"' by  the  elimination  therefrom  of  the  preferences  com- 
pelled by  railway  competition  has  very  materially  affected  the 
enforcement  of  the  third  section  by  the  Commission.  Thus 
during  the  first  ten  years  after  the  enactment  of  the  law,  the 
Commission  proceeded  upon  a  different  theory  of  the  law,  and 
tiie  decisions  reported  in  the  first  six  volumes  of  the  Interstate 
Commerce  Commission  Reports,  and  all  of  the  Interstate  Re- 
ports, in  the  construction  of  this  section  as  well  as  of  section 
4,  are  based  upon  the  theory  that  the  competition  of  rail- 
ways subject  to  the  act  was  not,  although  it  was  conceded 
that  water  competition  was,  a  justification  of  a  higher  rate  for 
the  shorter  haul  and  the  resulting  preference  of  localities.  In 
8  I.  C.  C.  R.  107,  the  Commission  said  that  the  greater  charge 
for  the  shorter  than  for  the  longer  haul  over  the  same  line  in 
the  same  direction  had  been  made  in  no  case  which  had  been 
nted  to  them,  except  where  the  competition  existed  at 
the  longer  distance  points  and  was  set  up  as  the  sole  excuse 
for  such  greater  charge. 

But  under  the  decisions  of  the  Supreme  Court,  the  applica- 
tion of  the  competitive  rule  is  subject  to  the  following  qualifi- 
cations: First,  the  competition  must  compel  the  lower  rate. 
That  is,  the  competition  must  be  controlling.  The  carrier 
must  either  reduce  its  rates  or  lose  the  business.  Second,  the 
competition  must  not  be  created  by  the  carrier;  that  is,  the 
preference  must  not  be  affected  through  an  agreement  or  com- 
bination of  the  carrier  with  other  carriers  stifling  competition. 
Third,  the  competitive  rate  must  be  at  the  preferred  point 


§  1S3.]  INTERSTATE    COMMERCE    ACT.  225 

remunerative  to  the  carrier.  Fourth,  the  rates  must  be  rea- 
sonable in  themselves. 

This  reasonableness  of  rates  in  themselves  must  be  determ- 
ined in  the  light  of  all  the  circumstances.  The  Commission  has 
held,  9  I.  C.  C.  R.  581,  following  the  decision  of  Chairman 
Cooley  in  2  I.  C.  C.  R.  231  and  2  Int.  Com.  Rep.  137,  that  no 
rates  can  be  reasonable  in  themselves  within  the  contempla- 
tion of  the  Act  which  are  made  regardless  of  proportion;  that 
rates  to  be  reasonable  must  be  under  all  the  facts  and  cir- 
cumstances relatively  reasonable.  In  the  cass  cited,  the  Com- 
mission held  that  although  there  was  a  substantial  dissimilar- 
ity of  circumstances  and  conditions  as  between  Nashville  and 
intermediate  points  on  the  Louisville  and  Nashville  Railroad  to 
Louisville,  so  that  section  1  of  the  Act  did  not  apply,  that  a  dif- 
ference of  one  cent  in  the  rates  fully  offset  this  difference  in  cir- 
cumstances and  conditions,  and  that  any  greater  difference 
rendered  the  rates  from  the  intermediate  points  relatively  un- 
reasonable in  violation  of  sections  1  and  3,  although  the  Com- 
mission said  that  it  did  not  feel  competent  to  say  that  the  rates 
from  the  intermediate  points,  independent  of  the  Nashville 
rate,  were  absolutely  unreasonable  in  and  of  themselves. 

The  Commission  has  considered  the  claims  of  unjust  prefer- 
ence in  the  adjustment  of  rates  as  between  localities  in  a  great, 
variety  of  cases  from  all  parts  of  the  country.  Thus  in  S  I.  C. 
C.  R.  608,  the  subject  of  the  transcontinental  rates  was  con- 
sidered, and  it  was  held  that  the  rates  from  Denver  to  San  Fran- 
cisco should  not  be  higher  than  the  rates  from  Missouri  river 
points  to  San  Francisco.  It  was  found  however  that  the  rate 
on  sugar  might  be  higher  to  Denver  from  San  Francisco  than 
to  the  Missouri  river  on  the  ground  that  the  circumstances  and 
conditions  governing  the  traffic  were  different  when  it  was. 
carried  to  Missouri  river  points  than  when  it  stopped  at  Den- 
ver, but  that  there  was  nothing  shown  justifying  higher  inter- 
mediate rates  on  any  article  west  bound. 

In  10  I.  C.  C.  R.  460,  decided  January  17,  1905,  the  differ- 
ential between  Wichita  and  Kansas  City  and  other  Missouri 
river  points  of  fifteen  cents  against  Wichita  was  held  excessive. 
In  a  former  case,  6  I.  C.  C.  R.  580,  such  a  differential  Avas 
held  violative  of  the  long  and  short  haul  clause,  but  that 
decision  was  rendered  before  the  construction  of  the  clause 
15 


226  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

by  the  Supreme  Court.  As  railroad  competition  existed  at 
Kansas  City,  a  higher  charge  to  Wichita  was  justified,  but  the 
amount  of  the  differential,  fifteen  cents  per  one  hundred  pounds, 
on  sugar  in  carloads,  was  held  unduly  preferential  under  sec- 
tion 3.  The  rate  from  New  Orleans  to  Wichita,  forty  cents  per 
one  hundred  pounds,  was  also  held  to   be  unreasonable  per  se. 

In  S  I.  C.  C.  R.  503,  the  rates  from  St.  Louis,  Nashville  and 
Chattanooga,  to  Hampton  and  Palatka,  in  Florida,  were  held 
prejudicial  to  the  Hampton  merchants.  That  while  the  com- 
petition at  Palatka  justified  a  lower  rate,  the  difference  should 
not  be  greater  than  the  local  rate  from  Palatka  to  Hampton. 
In  9  I.  C.  0.  R.  160,  rates  on  sugar  from  New  ( Orleans  to  Tif- 
ton,  Georgia,  were  held  unduly  prejudicial  as  compared  with 
rates  to  other  Georgia  points.  See  also  on  general  subject  of 
undue  preference  to  localities,  S  I.  C.  C.  R.  310,  and  8  I.  C.  C. 
K.  290. 

Where  an  existing  relation  of  rates  is  found  to  be  unduly 
preferential  as  between  localities,  the  discrimination  may  be 
corrected  by  raising  one  rate  or  reducing  the  other,  provided 
of  course,  the  rate  when  adjusted  is  reasonable  in  itself.  See  10 
I.  C.C.  R.  45G.  In  this  case  it  was  ruled  that  the  existence  of 
water  competition  between  Buffalo  and  New  York  did  not 
justify  any  wider  difference  in  the  rates  from  Saginaw  and 
Buffalo  to  points  on  the  New  York  and  Long  Branch  Rail- 
road than  existed  in  the  rates  from  those  shipping  points  to 
New  York. 

These  and  other  cases  cited  under  the  different  topics  of  this 
section  will  illustrate  the  almost  infinite  variety  of  circum- 
stances bearing  upon  the  complex  question  of  the  adjustment 
of  rates  between  localities. 

§  ls4.  Recognition  of  natural  advantages  of  localities  not 
an  unjust  preference. —  The  Commission  has  repeatedly  held 
that  a  town  favorably  situated  for  trade,  possessing  natural 
advantages  therefor,  is  entitled  to  the  benefits  in  rates  natur- 
ally arising  from  such  location.  See  5  I.  C.  C.  R.  571,  4  Int. 
( !om.  Rep.  230;  10  I.  C.  C.  R.  148  (the  Michigan  Salt  Case).  The 
law  requires  the  regulation  of  railroad  charges  according  to 
the  ascertained  rights  of  persons  and  places,  and  it  is  not  an 
agency  for  the  regulation  of  trade  by  enabling  shippers  or 
communities    to   do  business  by  putting  them  on  even  terms 


§   165.]  INTERSTATE    COMMERCE    ACT.  l;l'7 

with  rivals  more  remote  from  competitive  territory.  0  I.  C.  C. 
R.  458,  8  I.  C.  C.  B.  400.  The  equal  right  of  a  competing  lo- 
cality is  neither  increased  nor  diminished  by  municipal  sub- 
scriptions advanced  for  the  building  of  a  road.  2  I.  C.  C.  R. 
147  and  2  Int.  Com.  Eep.  95. 

The  refusal  to  give  a  through  rate  is  not  an  unjust  discrim- 
ination to  a  locality  when  the  same  rule  is  applied  to  all  towns 
and  the  privilege  accorded  to  none,  although  the  refusal  may 
operate  prejudicially  to  one, town  and  favorably  to  another,  as 
the  discrimination  must  consist  in  doing  for  or  allowing  to  one 
party  or  place  what  is  denied  to  another.  1  I.  C.  C.  It.  401  and 
1  Int.  Com.  Eep.  703. 

Neither  can  a  railroad  be  held  to  discriminate  against  a 
town  which  it  does  not  reach  and  in  whose  carrying  trade  it 
does  not  participate.  5  I.  C.  C.  E.  204,  and  4  Int.  Com.  Eep.  65. 

While  the  Commission  has  conceded  that  the  recoo-nition  of 
natural  advantages  of  localities  is  not  unjustly  preferential,  yet 
it  has  also  ruled  that  the  mere  fact  that  one  point  is  larger 
than  another  with  more  business  does  not  justify  a  discrimina- 
tion in  its  favor,  9  I.  C.  C.  E.  42,  and  that  one  of  the  underly- 
ing principles  of  the  Act  was  equality  between  great  and  small. 
See  also  2  I.  C.  C.  E.  25  and  2  Int.  Com.  Eep.  32. 

§  185.  Competing  cities  on  opposite  banks  of  rivers.—  The 
principle  that  a  city  is  entitled  to  the-benefits  arising  from  its 
location,  and  that  when  it  enjoys  exceptional  advantages  in  one 
respect  it  should  not  therefore  be  subjected  to  discrimination 
in  other  respects,  has  been  applied  in  the  case  of  cities  situated 
on  the  banks  of  rivers,  which  railroads  must  cross  by  expensive 
bridges  for  which  an  arbitrary  toll  is  charged,  or  which  must 
be  allowed  for  in  an  apportionment  of  through  rates.  Several 
such  instances  have  been  presented  to  the  Commission.  Thus 
the  cases  of  Omaha  and  Council  Bluffs,  St.  Louis  and  East  St. 
Louis,  Cincinnati  and  Louisville  were  presented,  though  in  the 
latter  case  the  cities  are  situated  on  the  opposite  banks  of  the 
Ohio  river  some  distance  apart,  but  are  competitors  for  the 
business  of  the  same  territory. 

In  the  case  of  Cincinnati,  71.  C.  C.  E.  180,  complaint  was 
made  by  the  Freight  Bureau  of  the  Chamber  of  Commerce 
against  the  higher  rates  charged  from  Cincinnati  than  Louis- 
ville to  southern  points.     The  Commission  said  that  theloca- 


228  INTERSTATE    COMMERCE    ACT.  [SeCTIOM    3. 

tion  of  Cincinnati  upon  the  north  bank  of  the  Ohio  river  and 
the  fact  that  the  railroads  leading  south  must  cross  that  river 
by  expensive  bridge  charges  justified  a  higher  differential  from 
Cincinnati  over  rates  from  Louisville  on  the  south  bank  of  the 
river.  As  the  Commission  had  nothing  before  it  except  the 
fact  of  distance,  it  did  not  pass  any  opinion  as  to  whether  the 
existing  differentials  were  just  or  excessive. 

In  the  case  of  Omaha  and  Council  Bluffs,  7  I.  C.  C.  R.  386, 
it  was  held  that  there  was  no  unjust  discrimination  against 
<  tmaha  in  the  fact  that  rates  to  points  in  Iowa  were  higher 
for  ( Mnaha  than  for  Council  Bluffs  by  the  amount  of  the  bridge 
toll  on  an  expensive  bridge  over  the  Missouri  river.  It  was 
said  in  the  opinion  that  all  like  or  group  rates  were  frequently 
applied  to  cities  considerably  further  apart  than  Omaha  and 
Council  Bluffs,  but  that  the  usage  in  this  regard  was  not  so. 
uniform  and  well  established  as  to  make  their  application  to 
those  cities  even  prima  facie  unjust. 

In  5  I.  C.  C.  R.  57  and  3  Int.  Com.  Rep.  701,  an  East  St. 
Louis  miller  was  held  entitled  to  the  advantage  of  his  location 
on  the  east  side  of  the  river  as  against  his  competitors  on  the 
other  side  of  the  river  in  St.  Louis,  and  that  a  railroad  ter- 
minating in  East  St.  Louis  which  allowed  St.  Louis  millers  a 
rebate  for  the  cost  of  their  teams  across  the  bridge  to  the  rail- 
road station  was  an  unjust  discrimination  against  the  East  St. 
Louis  miller,  and  the  latter  was  therefore  entitled  to  a  reduc- 
tion of  six  cints  a  barrel  as  to  flour  handled  b}r  him  to  the 
station  on  the  rates  in  force,  as  long  as  the  railroads  bore  that 
amount  of  the  cost  of  carriage  for  the  St.  Louis  shippers. 

§  ls(>.  Differentials  between  competitive  cities. —  The  in- 
tense competition  of  modern  commerce  is  illustrated  in  the 
complaints  made  to  the  Commission  by  the  Boards  of  Trade  or 
other  commercial  organizations  of  different  cities  against 
alleged  discriminations  in  the  relative  railroad  rates  to  com- 
peting localities.  The  differentials  allowed  by  the  trunk  line 
associations,  particularly  on  the  grain  traffic  from  the  west  to 
the  seaboard,  as  between  the  different  seaboard  cities,  have 
been  very  exhaustively  investigated.  Thus  in  the  case  of  the 
alleged  discriminations  against  Boston,  1  I.  C.  C.  R.  43G  and 
1  Int.  Com.  Rep.  756,  the  Commission  held  in  1888  that  the 
then' existing  differentials  between  Boston  and  New  York, 
being  ten  cents  per  hundred  pounds  on  the  first  and  second 


§  186.]  INTERSTATE    COMMERCE    ACT.  229 

classes,  and  five  cents  per  hundred  on  the  four  other  classes, 
on  traffic  from  west  of  Buffalo,  were  not  unreasonable.  The 
conclusion  was  based  upon  the  greater  cost  of  transportation 
to  Boston,  the  greater  volume  of  business  to  and  from  New 
York,  the  competition  by  water  and  through  lakes  and  canal  and 
Hudson  river  to  New  York,  and  the  geographical  and  com- 
mercial advantages  of  New  York. 

Later  however  in  1892,  the  Commission  re-examined  the 
subject  and  concluded  that  the  differential  was  excessive  and 
should  be  made,  not  by  adding  an  arbitrary  sum  to  the  New- 
York  rate,  but  by  adding  a  percentage,  ten  per  cent,  to  the 
New  York  rate.  In  this  case  the  Commission  held  that  the  dec- 
trine  of  estoppel  was  not  applicable,  as  the  Commission  was  not 
a  court,  and  that  the  whole  spirit  and  scope  of  the  Act  made  the 
report  and  order  of  the  Commission  in  no  sense  final,  except  in 
the  sense  that  the  parties  may  be  impressed  with  the  justice  of  the 
order  and  acquiesce  therein.  51.  C.  C.  E.  166, 3  Int.  Com.  Kep.  830. 

In  1898  the  Commission,  on  the  complaint  of  the  New  York 
Produce  exchange,  investigated  the  differentials  allowed  b}' 
the  railroads  of  two  cents  to  Philadelphia  and  three  cents  to 
Baltimore  below  the  New  York  rate  on  grain,  flour  and  pro- 
visions. 7  I  C.  C.  K.  612.  The  Commission  made  an  exhaus- 
tive investigation  of  the  commerce  of  the  three  ports,  and  con- 
cluded that  the  differentials  were  legitimately  based  upon  the 
competitive  relations  of  the  carriers,  and  did  not  result  in  any 
unlawful  preferences  or  advantage  to  Philadelphia  or  Balti- 
more over  the  city  of  New  York.  It  was  contended  in  this 
case  that  the  rates  were  really  made  by  the  trunk  line  associa- 
tions, but  the  Commission  held  that,  so  far  as  the  alleged  viola- 
tion of  the  third  section  was  concerned,  this  was  immaterial. 

Cases  of  alleged  discrimination  in  relative  rates  between 
competing  cities  have  been  investigated  in  different  sections 
of  the  country.  As  in  the  case  of  alleged  unreasonable  rates, 
the  conclusions  of  the  Commission  are  not  adjudications,  and 
as  the  Commission  observed  in  the  case  of  the  Boston  differen- 
tial, they  do  not  preclude  the  Commission  itself  from  reinves- 
tigation. A  rate  which  is  relatively  reasonable  at  one  time,  may 
become  through  changed  conditions,  relatively  unreasonable.1 

1  Another  hearing,   involving  the    (1904)  progressing  before  the   Corn- 
reasonableness  of  the  existing  differ-    mission, 
■entials  allowed  eastern  cities  is  now 


230  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

|  1">7.  Form  of  unjust  preference  immaterial. — The  third 
section  is  broader  than  the  second,  in  that  it  is  not  limited  to 
discrimination  in  rates,  but  includes  any  form  of  unjust  dis- 
crimination whereby  a  person,  a  class  of  persons,  a  locality  or 
kind  of  traffic  is  unjustly  prejudiced. 

This  undue  preference  between  competing  cities  may  be 
shown  in  the  allowance  of  demurrage;  that  is,  in  allowing 
time  unreasonably  small  in  one  place  and  unreasonably  long 
in  another.     8  I.  C.  C.  R  531.     See  also  7  I.  C.  C.  R  591. 

It  may  be  stated  generally  that  any  form  of  discrimination 
between  persons  or  localities  in  the  performance  of  any  of  the 
duties  of  a  carrier,  whether  such  duties  are  imposed  by  the 
common  law,  or  by  statute,  or  by  contract,  would  be  violative 
of  this  section.  Thus  the  failure  to  publish  through  rates  to 
a  particular  town  while  such  through  rates  are  established 
and  published  to  other  points  on  the  road,  operates  as  an  un- 
lawful discrimination  against  that  town.     9  I.  C.  C.  E.  221. 

In  any  of  the  so  called  "accessorial  services"  which  may  be 
rendered  by  the  carrier,  there  must  be  no  unjust  preference  of 
localities  or  individuals  in  providing  such  services.  Any  in- 
justice resulting  from  the  allowance  and  non-allowance  by  the 
carriers  of  such  privileges  and  facilities  is  violative  of  section 
three,  as  well  as  of  section  two.     See  7  I.  C.  C.  E.  556. 

The  differential  between  carload  arid  less  than  carload  rates 
may  be  unjustly  prejudicial  to  localities,  as  well  as  unjustly 
discriminative  as  between  individuals.  See  9  I.  C.  C.  E.  318, 
and  section  2,  supra. 

Where  the  circumstances  and  conditions  of  the  localities  are 
dissimilar,  there  can  be  no  unjust  preference  under  section 
3,  as  there  can  be  unjust  discrimination  under  section  2.  See 
Grand  Haven  Cartage  case,  supra.  Thus  it  is  not  an  unjust 
discrimination  against  a  town  situated  on  a  branch  line  to 
charge  it  a  higher  rate  than  an  intermediate  point  on  the 
through  line,  even  though  such  intermediate  point  enjoys  the 
same  rate  as  the  terminal  point.  5  I.  C.  C.  E.  44  and  3  Int. 
Com.  Eep.  706. 

In  4  I.  C.  C.  R  131  and  3  Int.  Com.  Eep.  162,  the  Commis- 
sion ruled  that  the  acquisition  and  consolidation  by  a  carrier 
under  one  system  or  arrangement  of  different  competing  lines 
of  road  serving  the  same  territory  in  the  carriage  of  competi- 


§§  1S8,  189.]  INTERSTATE    COMMERCE    ACT.  231 

tive  traffic  to  the  same  markets  did  not  allow  it  to  take  advan- 
tage of  the  privilege  to  deprive  the  public  of  the  benefits  of 
fair  competition  nor  afford  warrant  for  oppressive  discrimina- 
tion for  its  own  interests,  such  as  equalizing  profits  of  the 
several  divisions;  but  that  its  duty  to  the  public  required  that 
its  service  must  be  alike  to  all  who  were  situated  alike. 

It  was  held  in  Foster  v.  C.,  C,  C.  &  St.  L.  R.  Co.,  56  Fed. 
Rep.  434,  that  the  action  of  a  railroad  passenger  agent  guar- 
anteeing that  a  theatrical  troupe  to  whom  he  sold  a  party  rate 
ticket  should  arrive  at  its  destination  in  a  given  time,  was  not 
a  giving  of  an  undue  or  unreasonable  preference,  and  the  guar- 
antee was  held  valid  and  enforcible. 

§  188.  Unjust  discrimination  in  time  of  closing  freight 
stations. — The  Commission  ruled  in  a  recent  case  ( 10  I.  C.  C. 
R.  378),  that  its  jurisdiction  under  this  section  extended  to  a 
case  of  alleged  unlawful  prejudice  and  disadvantage  to  ship- 
pers in  Cincinnati  of  outbound  package  freight,  through  the 
enforcement  by  carriers  of  a  regulation  providing  for  the 
earlier  closing  of  the  stations  used  for  the  reception  of  such 
freight.  The  closing  hour,  4:30  p.  m.,  was  earlier  than  that 
in  competing  cities,  and  the  Commission  said  that  this  was  a 
disadvantage  to  Cincinnati  shippers,  but  that  it  was  for  the 
time  justified  by  the  exceptional  congestion  of  traffic  then  pre- 
vailing. The  complaint  was  therefore  dismissed  without  pre- 
judice to  any  further  necessary  proceeding. 

§  189.  Unjust  preference  in  car  service. — The  providing 
of  reasonable  car  facilities  for  its  patrons  is  a  common  law 
duty  of  the  carrier,  and  this  service  must  be  rendered  without 
unreasonable  discrimination  either  in  charges  or  in  the  facili- 
ties afforded.  This  common  law  duty,  which  is  enforced  in 
the  different  states  under  state  statutes  and  at  common  law,  is 
emphasized  by  and  may  be  enforced  under  the  provisions  of 
this  section  as  to  interstate  traffic.  Localities  as  well  as  ship- 
pers may  be  prejudiced  by  the  unjust  discriminations  in  the 
supply  of  cars.  This  right  is  further  enforced  by  the  amend- 
ment of  1880,  specifically  authorizing  the  issue  of  a  writ  of 
mandamus  (infra  section  23),  for  the  furnishing  of  cars  and 
other  facilities.  In  United  States  v.  West  Virginia  &  North- 
ern Railroad  Co.,  125  Fed.  Rep.  252,  the  United  States  Circuit 
Court  of  West  Virginia  granted  a  mandamus  to  compel  the 


232  INTEKSTATE    COMMERCE    ACT.  [SECTION    3. 

carrier  to  cease  preferences  in  the  supply  of  cars  to  certain 
coal  mines.  The  court  said  it  was  the  legal  duty  of  the  rail- 
road company  in  furnishing  cars  to  coal  mines  along  its  line 
to  distribute  the  same  impartially  without  unjust  discrimina- 
tion or  favoritism,  and  that  such  distribution  should  be  based 
on  a  disinterested  and  intelligent  examination  of  the  mines, 
by  experts,  and  upon  a  consideration  of  all  the  factors  which 
go  to  make  up  the  capacity  of  the  mines,  the  production,  the 
equipment  for  the  use  for  handling  and  loading  of  the  product 
being  secondary  because  it  could  quickly  and  easily  be  increased 
to  meet  the  requirements.  The  distribution  of  cars  was  found 
to  have  been  unduly  preferential  to  certain  companies,  this 
conclusion  being  based  upon  an  estimate  of  the  capacity  of  the 
mines  and  the  percentage  of  cars  allotted  to  each.1  See  also  to 
same  effect  United  States  v.  Xorfolk  &  Western  E.  Co.,  109 
Fed.  Rep.  831,  infra  section  23. 

It  was  ruled  by  the  Commission,  1  I.  C.  C.  E.  594  and  1  Int. 
Com.  Eep.  787,  that  it  was  not  a  valid  excuse  for  refusal  to  fur- 
nish a  fair  allotment  of  cars  of  a  certain  class  that  they  could 
be  more  profitably  employed  and  could  supply  the  wants  of  a 
larger  number  of  shippers  on  another  portion  of  the  line.  It 
also  ruled  that  undue  preference  of  a  locality  or  of  a  shipper 
in  the  car  service  is  established  by  showing  that  there  is  a  con- 
siderable delay  in  furnishing  cars,  while  other  localities  or  ship- 
pers are  furnished  with  comparative  promptness.  9  I.  C.  C.  E. 
207.  For  other  cases  of  discrimination  before  the  Commission 
in  providing  cars  for  coal,  see  10  I.  C.  C.  E.  226;  10  I.  C.C.  E. 
47.  The  Commission  in  several  cases  has  awarded  reparation 
in  damages  for  discrimination  in  car  service. 

In  Harp  v.  Choctaw  &  G.  E.  Co.,  61  C.  C.  A.  405,  and  125 
Fed.  Eep.  445  (eighth  circuit)  in  1903,  it  was  held  in  a  case 
where  discrimination  in  car  service  was  claimed  in  violation  of 
the  Arkansas  statute,  that  a  carrier  transporting  large  quanti- 
ties of  coal  is  entitled  to  make  regulations  in  respect  to  the 
manner  of  receiving  and  transporting  it  so  that  it  may  be 
handled  safely,  expeditiously  and  economically  without  inter- 
ference with  the  carrier's  other  business,  and  regulations  which 
are  all  designed  to  promote  such  business  cannot  be  complained 
of  on  the  ground  that  they  operate  to  give  a  preference  to 

1  Affirmed  in  Cir.  Ct.  of  Appeals  (4th  Circuit)  (Nov.  1904).  134  Fed.  Rep.  198. 


§   189.]  INTERSTATE    COMMERCE    ACT.  233 

one  who  complies  with  them  or  in  a  discrimination  against 
•one  who  does  not.  The  furnishing  therefore  of  cars  to  cer- 
tain mine  owners,  who,  through  agreements  with  the  company, 
had  constructed  private  spur  tracks  to  their  mines,  while  refus- 
ing to  furnish  cars  for  loading  on  the  station  track  to  owners 
who  had  constructed  no  spur  track,  did  not  constitute  an  undue 
preference  either  under  the  common  law  or  the  Arkansas  sta- 
tute, which  prohibited  the  giving  of  any  preferences  in  the 
furnishing  of  cars.  The  court  found  that  the  volume  of  busi- 
ness was  such  that  to  permit  the  use  of  the  station  tracks  for 
loading  cars  in  that  manner  would  not  only  interfere  with  the 
operation  of  the  trains,  but  also  cause  serious  loss  and  incon- 
venience to  other  shippers  and  the  public.  It  was  held  by  the 
state  court  under  the  same  statute  that  there  was  no  undue 
preference  between  localities  when  there  were  not  enough 
cars  to  supply  all.  The  court  cited  as  the  leading  case,  Oxlaid 
v.  Northeastern  R.  Co.,  15  Common  Bench,  1ST.  S.  680,  constru- 
ing the  English  Canal  and  Traffic  Act  of  1854,  upon  which  the 
Interstate  Commerce  Act  was  based.  Little  Rock  &  St.  L.  R. 
Co.  v.  Oppenheimer,  41  L.  R.  A.  353,  64  Ark.  271. 

The  Commission  has  ruled  that  it  is  not  the  duty  of  a  carrier 
;to  notify  the  shipper  when  he  can  obtain  cars  for  the  removal 
of  freight,  if  by  reasonable  inquiry  he  can  obtain  such  in- 
formation himself.    1 1.  C.  C.  R.  60S  and  1  Int.  Com.  Rep.  778. 

It  was  said  by  the  commission  in  another  case,  1  I.  C.  C.  R. 
374  and  1  Int.  Com.  Rep.  688,  where  damages  were  claimed 
for  alleged  violation  of  the  Act  in  the  failure  to  furnish  cars 
for  coal  shipments,  that  the  inability  of  a  carrier  to  furnish 
cars  as  fast  as  demanded  by  shippers  was  not  a  violation  of 
the  Act,  where  the  company  had  an  adequate  freight  equip- 
ment for  ordinary  conditions,  but  owing  to  an  extraordinary 
demand  for  coal  cars  due  to  exceptional  conjunction  of  circum- 
stances, was  unable  to  supply  them  as  fast  as  the  shippers  de- 
manded. Under  such  circumstances,  the  company  performed 
its  duty  when  it  furnished  the  cars  rata'bly  and  fairly  at  the 
mines  along  its  line  in  proportion  of  their  freights  until  the 
•emergency  had  passed.  Neither  was  a  carrier  responsible  for 
the  detention  of  cars  by  shippers  longer  than  was  necessary, 
when  it  appeared  that  the  company  did  all  in  its  power  to  en- 
force the  prompt  unloading  of  the  cars.     See  also  as  to  car- 


234  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

Tiers'  duty  in  the  matter  of  car  equipment,  2  I.  C.  C.  R.  90 
and  2  Int.  Com.  Rep.  67. 

?;  190.     Discrimination  by  carrier  in  its  own  favor.— As 

the  carrier  may  discriminate  in  favor  of  itself  in  violation  of 
section  2,  when  it  is  both  a  carrier  and  a  shipper,  so  it  may 
discriminate  by  an  unjust  preference  against  certain  localities 
by  thf  same  means.     See  supra,  section  2. 

Thus  in  Commission  v.  Chesapeake  &  Ohio  R.  Co.,  supra, 
the  contract  by  the  carrier  with  another  carrier  for  the  deliv- 
ery of  the  coal  belonging  to  the  first  at  a  fixed  price,  was  held 
to  operate  to  give  the  purchaser  an  undue  preference,  in  viola- 
tion of  section  3,  and  that  the  contract  was  therefore  illegal, 
and  uninforcible  and  its  further  performance  was  enjoined. 
See  supra,  section  2. 

§  191.  Unjust  preference  in  private  cars.— The  same 
principle  was  applied  by  the  Commission  to  the  use  of  private 
cars.  Thus  in  It  I.  C.  C.  R.  1,  the  Commission  said  that  the 
carrier  could  refuse  to  haul  private  cars  at  all,  or  to  only  haul 
those  of  a  certain  class  and  refuse  to  haul  others  of  a  wholly 
or  substantially  different  class.  In  either  case  however  there 
should  be  no  avoidable  partiality.  The  railroad  should  there- 
fore exclude  from  its  road  all  such  cars,  or  else  prescribe  in  its 
tariff's  the  rates  and  rules  under  which  they  wTould  be  trans- 
ported. In  this  case  the  private  car  was  that  of  a  commercial 
salesman  and  was  stocked  with  his  samples  of  men's  clothing 
and  furnishings.  The  Commissions  aid  that  in  comparison 
with  the  private  car  service  rendered  for  pleasure  journeys  and 
theatrical  companies,  the  service  was  so  very  different  and  un- 
usual as  to  justify  a  greater  compensation,  and  would  justify 
the  carrier  in  refusing  the  car  altogether. 

As  to  tank  cars  see  4  I.  C.  C.  R.  131  and  3  Int.  Com.  Rep. 
1G2  where  the  Commission  said  that  it  was  the  carrier's  duty 
to  equip  its  road  with  the  instrumentalities  of  carriage  suitable 
t<>  the  traffic  and  furnish  them  alike  to  all,  and  its  duty  to  fur- 
nish equipment  could  not  be  transferred  to  nor  required  of 
shippers.  Where  it  accepted  and  used  cars  owned  by  shippers 
or  others,  in  legal  contemplation,  it  adopted  them  as  its  own 
for  the  purpose  of  rates  and  carriage.  The  carrier  could  not 
by  any  device,  such  as  the  payment  of  unreasonable  rent, 
evade  the  duty  of  equal  charges  for  equal  service.     See  also 


§   191.]  INTERSTATE    COMMERCE    ACT.  235 

1  I.  C.  C.  R.  503,  1  Int.  Com.  Rep.  722,  6  I.  C.  C.  R.  295;  2  I. 
C.  C.   R.  90,  2  Int.  Com.  Rep.  67. 

It  was  said  by  Judge  Cooley  in  an  early  case,  1  I.  C.  C.  R. 
503  and  1  Int.  Com.  Rep.  722,  that  it  is  properly  the  business 
of  a  carrier  to  supply  the  rolling  stock  for  the  freights  he  offers 
or  proposes  to  carry,  and  if  the  diversities  and  peculiarities  of 
traffic  are  such  that  this  is  not  always  practicable,  and  consign- 
ors must  supply  it  themselves,  the  carrier  must  not*  allow  its 
own  deficiencies  in  this  particular  to  be  the  means  of  putting 
to  a  particular  disadvantage  those  who  make  use  in  the  traffic 
of  the  facilities  it  supplies,  citing  Railroad  Co.  v.  Pratt,  22 
Wallace  123,  22  L.  Ed.  S27. 

In  9  I.  C.  C.  R.  1S2,  the  California  Fruit  case,  the  Commis- 
sion said  that  while  it  must  be  conceded  that  the  leasing  of 
equipment,  by  carriers,  as  refrigerator  cars,  afforded  oppor- 
tunities for  unfair  advantage,  that  carriers  are  left  by  the  law 
to  procure  equipment  for  business  by  lease  as  well  as  by  pur- 
chase, and  they  are  not  prohibited  from  leasing  from  a  ship- 
per, nor  are  they  compelled  to  lease  from  all  shippers  because 
they  do  from  one. 

The  subject  of  private  cars  has  been  considered  in  connec- 
tion with  section  1  of  the  act  (see  supra,  §  118),  as  to  the  charg- 
ing in  excess  of  reasonable  rates  for  refrigeration  in  conse- 
quence of  the  use  of  such  cars,  and  the  matter  of  unjust  dis- 
crimination between  shippers  has  been  considered  in  connec- 
tion with  section  2  of  the  act  {supra,  §  159).  See  also  the  ex- 
tended discussion  of  this  subject  by  the  commission  in  its  an- 
nual report  for  1904,  page  10.  In  this  report  the  Commission 
says  that  the  use  of  private  cars  may  be  divided  into  two  gen- 
eral classes,  those  in  which  the  property  of  the  owner  of  the 
car  is  transported  and  those  in  which  the  owner  is  not  inter- 
ested in  the  .contents  of  the  car.  In  the  first  class  the  shipper 
owns  the  car,  and  it  is  ordinarily  only  used  for  the  carriage  of 
the  property  of  the  owner,  and  in  the  second  class  the  cars  are 
usually  owned  by  some  private  car  company  which  constructs 
the  car,  keeps  it  in  repair  and  leases  it  to  the  railroad  com- 
pany. The  Commission  recommends  legislation  requiring 
parties  furnishing  such  cars  to  be  subject  to  the  Act,  and  that 
all  the  charges  therefor  paid  subject  to  the  control  of  the 
Commission,  and    that  the  compensation  for  the  use  of  the 


230  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

cars  should  also  be  subject  to  the  jurisdiction  of  the  Commis- 
sion. 

§  11)2.  Exclusive  use  of  excursion  or  sleeping  cars  of 
one  owner. —  The  same  principle  applies  in  cases  of  special 
classes  of  cars,  such  as  excursion  and  sleeping  cars  for  passeng- 
ers. A  railroad  company  may  acquire  cars  of  any  class,  by 
construction,  by  purchase,  or  by  contract  for  their  use,  and  no 
one  can  compel  a  railroad  company  to  select  among  these  sev- 
eral modes  or  to  contract  with  all  carriers.  This  principle 
was  applied  by  the  Commission  in  3  I.  C.  C.  R  577  and  -2  Int. 
Com.  Rep.  792,  in  ruling  that  it  was  not  unjustly  preferential 
for  a  railroad  company  to  refuse  to  haul  the  excursion  cars  of 
one  car  company,  when  it  had  a  sufficient  supply  of  excursion 
cars  for  its  business  from  another  compan}'  with  whom  it  had 
contracted. 

§  193.  Leasing  of  cars  does  not  carry  right  of  exclusive 
use  by  owner. —  It  is  the  duty  of  a  carrier  to  equip  its  road 
with  the  means  of  transportation,  and  in  the  absence  of  ex- 
ceptional conditions  those  means  must  be  open  impartially  to 
all  shippers  of  like  traffic. 

The  Commission  said  in  one  of  the  numerous  tank  line  cases, 
5  1.  C.  C.  R.  415,  -4  Int.  Com.  Rep.  162,  that  ownership  of  a 
car  rented  to  a  carrier  for  a  full  consideration  did  not  of  itself 
entitle  the  owner  to  the  exclusive  use  of  such  car,  and  if  he 
could  stipulate  for  such  use,  it  must  be  upon  such  terms  as 
shall  not  constitute  an  unjust  discrimination  against  shippers 
of  like  traffic  excluded  from  use  of  the  car.  Where  a  carrier 
pays  mileage  for  a  car  which  it  employs  in  the  service  of  the 
shipper,  it  is  the  carrier,  and  not  the  party  or  company  from 
whom  the  car  is  rented  who  furnished  the  car  to  the  shipper, 
and  in  such  case  there  is  no  privity  of  contract  between  the 
car  owner  and  the  shipper.    6  I.  C.  C  R.  295. 

§  194:.  Stoppage  in  transit  privileges. —  The  privilege  of 
stoppage  in  transit,  including  the  right  of  milling  grain  in 
transit  or  of  compressing  cotton,  which  the  Commission  sus- 
tained as  a  legitimate  privilege  extended  b}r  carriers,  must  not  be 
so  extended  as  to  operate  as  an  undue  preference  to  localities  or 
unjust  discrimination  between  individuals.    Sees>q>ra,  section  2. 

The  commission  said  in  9  I.  C.  C.  R.  373,  that  if  stop-over 
privileges  are  granted   for  any  purpose,  all  the  facts  and  cir- 


§195.]  INTERSTATE    COMMERCE    ACT.  231 

cumstances  connected  therewith  should  be  clearly  stated  in 
the  published  tariff  so  that  the  public  generally  may  enjoy  the 
benefits.  In  this  case  the  grain  was  shipped  through  St.  Louis 
with  stop-over  privilege  in  East  St.  Louis  for  cleaning,  sack- 
ing, or  any  other  purpose,  the  shipment  afterwards  carrying 
the  proportional  or  balance  of  through  rate  from  East  St. 
Louis.  The  Commission  in  this  case,  however,  condemned  the 
practice  of  shipping  to  East  St.  Louis  on  a  local  rate  for  the 
purpose  of  "  trying  the  market,'''  and  then  shipping  on  a  re- 
duced proportional  rate  to  a  southern  point.  See  also  7  I.  C. 
C.  R.  240,  where  a  similar  practice  was  condemned. 

In  the  lumber  "Tap-line"  case,  10 1.  C.  C.  R.  193  {supra,  §  163),. 
the  Commission  said  that  it  might  be  urged  with  force  that 
practices  of  this  kind  were  not  sanctioned  by  the  act,  and 
that  it  had  intimated  that  view  in  1  I.  C.  C.  R.  401,  1  Int. 
Com.  Rep.  T03.  The  practice  had  become  so  general  that 
vast  amounts  had  been  invested  in  industrial  plants  upon  the 
faith  of  the  continuance  of  these  privileges;  and  no  doubt  their 
allowance  had  cheapened  the  cost  of  transportation  and  prob- 
ably of  manufacture.  The  Commission  concluded  that  when 
once  the  principle  of  milling  in  transit  was  admitted  it  could 
be  applied  to  the  manufacture  of  logs  into  lumber. 

In  1  I.  C.  C.  R.  401  and  1  Int.  Com.  Rep.  703,  the  Commis- 
sion ruled  that  the  privilege  of  stoppage  in  transit  should  not 
be  extended  so  as  to  give  to  the  merchants  of  a  town  the 
privilege  of  shipping  their  goods  from  the  point  of  purchase  to 
their  own  locality,  and  thence  to  the  place  where  the  goods 
may  be  sold  by  them  at  the  same  rate  at  which  they  would 
have  been  charged  if  there  had  been  but  one  shipment  from 
the  point  of  purchase  to  the  point  of  final  delivery. 

§  195.  Interference  by  State  Railroad  Commission  with 
proportional  tariff  rates. — The  term  "proportional  tariffs" 
has  been  given  to  freight  rates  applying  upon  shipments  with 
stoppage  in  transit  privileges,  that  is,  where  the  commodities 
shipped  originate  beyond  the  place  of  shipment,  when  their  ul- 
timate destination  is  beyond  the  point  to  which  the  propor- 
tional rates  apply.  In  a  recent  Texas  case,  it  appeared  that 
the  State  Railroad  Commission  had  issued  an  order  that  the  Chi- 
cago, Rock  Island  &  Texas  railroad  company  should  cancel  all 
its  so-called  proportional  tariffs  on  grain  products  from  and 


238  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

to  points  reached  by  its  railway,  whether  local  or  in  connection 
with  any  other  lines  of  railroad.  A  bill  was  filed  by  the  owner 
of  a  grain  elevator  at  Fort  "Worth  engaged  in  the  purchase  of 
grain  from  the  country  north  of  Texas  for  the  purpose  of  ship- 
ping by  export  from  the  Gulf  ports,  alleging  that  these  proj:or- 
bional  tariffs  had  been  filed  with  the  Interstate  Commerce  Com- 
mission and  relate  wholly  to  interstate  traffic.  The  Court  held 
that  the  order  of  the  State  Railroad  Commission  was  illegal  and 
void,  that  it  had  no  jurisdiction  or  control  over  the  propor- 
tional tariff  rates  in  question;  and  a  temporary  injunction  was 
issued  against  the  enforcement  of  the  order  so  far  as  the  Com- 
mission was  concerned;  the  Court  declining  to  grant  any  in- 
junction against  the  railroad  company,  on  the  ground  that  it 
was  fully  able  to  respond  in  damages  for  any  failure  to  carry 
out  its  contract.  Rosenbaum  Grain  Co.  v.  C.  R.  &  T.  R.  Co., 
L30  Fed.  Rep.  40.  The  order  granting  the  temporary  injunc- 
tion was  affirmed  in  Circuit  Court  of  Appeals.  130  Fed.  Rep. 
L10. 

§  196,  Sidetracks  and  connections. — Another  form  of  al- 
leged  preference  has  grown  out  of  the  practice  of  building  sid- 
ings and  spurs  for  connecting  the  main  track  of  a  railroad  with 
industrial  enterprises,  such  as  mills,  furnaces  and  elevators. 

Some  states,  as  South  Dakota,  (R.  S.  So.  Dakota,  1>99,  sec- 
tion 253), and  Nebraska,  (Laws  of  1887,  Ch.  00,)  have  made  a  stat- 
utory provision  for  such  connections.  The  statute  of  the  latter 
state  was  construed  as  authorizing  the  State  Railroad  Commis- 
sion to  require  the  railroad  company  to  grant  the  right  to 
erect  an  elevator  upon  the  right  of  way  at  a  specified  point  on 
the  same  terms  and  conditions  which  it  had  already  granted 
to  other  persons  the  right  to  erect  elevators  thereat.  The  Su- 
preme Court  ruled  in  Missouri  Pacific  Railway  Co.  v.  Nebraska, 
164  U.  S.  403,  41  L.  Ed.  489,  that  this  Nebraska  statute  so  con- 
strued as  requiring  a  railroad  company  to  grant  to  the  petition- 
ers a  right  to  build  and  maintain  a  permanent  structure  on 
their  right  of  way  was  a  taking  by  the  State  of  the  private 
property  without  the  owner's  consent  for  private  use,  and  was 
violative  of  due  process  of  law  and  the  Fourteenth  Amendment. 
The  court  however  limited  its  decision  to  this  point,  and 
said  that  the  question  of  the  power  of  the  legislature  to  com- 
pel the  railroad  company  to  erect  and  maintain  an  elevator  for 


§   196.]  INTERSTATE    COMMERCE    ACT.  239 

the  use  of  the  public,  or  to  compel  it  to  permit  all  persons  to 
enjoy  equal  facilities  of  access  from  their  own  lands  to  its  tracks 
for  the  purpose  of  shipping  or  receiving  grain  or  other  freight 
was  not  involved,  as  the  order  of  the  Commission  was  not  lim- 
ited to  the  temporary  use  of  the  tracks  nor  to  the  conduct  of 
the  business  of  the  railway  company. 

In  Illinois,  railroads  were  required  by  the  State  constitution, 
article  13,  section  5,  to  permit  connections  to  be  made  to  their 
tracks  so  that  any  consignee  of  grain  in  bulk 'and  any  public 
warehouse,  coal  bank  or  coal  yard  may  be  reached  by  the  cars 
on  the  railroad.  In  Chicago,  etc.,  R.  Co.  v.  Suffern,  120  111. 
274,  it  was  held  that  a  railroad  company  was  not  justified  in 
refusing  to  ship  coal  over  its  own  railroad  off  of  a  switch  road 
to  the  shipper's  mine  simply  because  the  shipper  also  shipped 
on  another  carrier's  line. 

The  question  was  considered  in  one  of  theLouisvilleStockyard 
cases,  Butchers  &  Drovers  Stockj'ard  Co.  v.  Railroad  Co.,  14 
C.  C.  A.  290,  1.  c.  p.  297,  67  Fed.  Rep.  35,  whether  it  was  a 
discrimination  which  could  be  controlled  or  restrained  by  the 
courts  for  a  railroad  company  to  refuse  to  furnish  a  sidetrack 
or  not  to  its  customers  and  furnish  such  accomodations  to  an- 
other similarly  situated.  The  Court  said  in  an  opinion  by  Jus- 
tice Taft  that  this  question  was  very  difficult,  both  at  common 
law  and  under  the  statute.  It  was  held  however  not  to  be 
involved  in  the  case  before  the  Court,  as  there  was  such  a  dif- 
ference between  the  business  of  the  complainant  and  that  of 
the  other  abutters  upon  the  spur  track  as  to  make  the  re- 
fusal of  the  company  to  grant  the  sidetrack  to  the  complainant 
entirely  reasonable,  this  difference  consisting  of  the  fact  that 
the  complainants'  traffic  was  live  stock  and  that  of  the  other 
abutters  dead  freight,  making  the  conditions  of  deliveries  and 
shipments  entirely  distinct. 

In  Harp  v.  C.  O.  &  G.  R.  Co.,  (Ark.)  118  Fed.  Rep.  100,  the 
court  held  that  a  railroad  was  under  no  obligation  to  build  a 
spur  track  to  coal  mines  for  private  benefit  of  the  owner,  nor 
was  it  liable  for  damages  for  unlawful  discrimination  because 
•of  refusal  to  build  such  track,  although  it  had  assisted  and  per- 
mitted other  spurs  to  be  built.  The  judgment  was  affirmed  in 
the  Circuit  Court  of  Appeals,  but  on  another  ground.  61  C.  C. 
A.  405,  125  Fed.  Rep.  445. 


210  INTERSTATE    COMMERCE    ACT.  [SECTION   3. 

This  decision  was  approved  and  followed  in  Robinson  v.  15. 
A:  O.  Railroad  Co.,  129  Fed.  Rep.  753,  where  it  was  held  that 
the  carrier  in  his  right  to  make  reasonable  regulations  for  the 
delivery  of  freight  was  not  compelled  to  receive  coal  at  a  siding 
where  merchandise  other  than  coal  was  received,  merely  be- 
cause the  place  was  more  acceptable  to  a  shipper,  when  it  had 
designated  the  siding  for  receiving  coal  and  the  siding  was  not 
an  unreasonable  place. 

In  another  stockyards  case,  that  of  the  Interstate  Stockyards 
Co.  v.  Railroad  Company,  99  Fed.  Rep.  473,  the  Court  laid 
down  the  general  proposition  that  a  "  common  carrier  of  inter- 
state freight  cannot  lawfully  deny  switch  connection  and  serv- 
ice to  one  person,  place  or  locality,  or  kind  of  traffic,  which  it 
affords  to  others  similarly  situated."  This  question  however 
must  be  construed  in  connection  with  the  special  facts  of  the 
case,  the  alleged  discrimination  being  by  a  city  belt  line  which 
was  required  under  the  city  ordinance  and  State  statute  to  grant 
switch  connections  to  all  persons  and  to  render  service  in  re- 
spect to  all  freight  upon  equal  and  impartial  terms.  This  road 
was  enjoined  from  discontinuing  the  receipt  of  live  stock  from 
sidings  which  had  been  theretofore  constructed  and  main- 
tained. 

Assuming  that  there  can  be  no  unjust  preference  in  the  re- 
fusal of  switch  connections  unless  the  circumstances  and  con- 
ditions are  similar,  it  is  difficult  to  see  how  in  any  case  the  Court 
can  compel  a  carrier  to  construct  and  maintain  such  a  siding 
for  private  use  in  its  own  right  of  way  at  its  own  expense.  Ne- 
braska v.  Missouri  Pacific  Ry.  Co.,  supra.  There  seems  to  be 
no  case  where  either  the  Commission  or  the  Court  has  enforced 
the  construction  and  maintenance  of  such  switch  connections. 
See  7  I.  C.  C.  R.  194,  where  such  an  application  was  unsuccess- 
ful^7 made.  The  carrier  is  not  bound  in  every  instance  to 
furnish  under  legal  compulsion  the  same  terminal  facilities  for 
all  descriptions  of  traffic.  It  is  sufficient  if  reasonable  provi- 
sion is  made  in  this  regard,  and  what  is  reasonable  in  a  given 
instance  depends  largely  upon  the  conditions  and  surroundings 
of  a  particular  locality.     See  9  I.  C.  C.  R.  61. 

§  197.  Undue  preference  in  denying  shippers  the  choice 
of  route. —  Another  form  of  undue  preference  condemned  by 
the  Commission  is  the  practice  of  initial  carriers  in  joint  con- 


§   198.]  INTERSTATE    COMMERCE    ACT.  241 

tinuous  routes  of  reserving  to  themselves  the  exclusive  control 
of  the  routing  of  freight,  and  denying  to  shippers  any  choice 
or  control  in  the  selection  as  between  different  established 
routes,  the  route  being  determined  by  the  carrier's  agents  ac- 
cording as  they  may  desire  to  distribute  the  shippers  business 
among  one  another  from  time  to  time  or  for  an}'  reason  what- 
ever. The  Commission  ruled  in  the  California  Fruit  case,  9  I. 
C.  C.  R.  182,  that  this  practice  was  in  violation  of  the  statute, 
subjecting  the  shippers  to  undue  and  unreasonable  prejudice 
and  giving  the  carriers  undue  and  unreasonable  preference 
and  advantage.  See  also  3  I.  C.  C.  R.  658,  3  Int.  Com.  Rep. 
33. 

This  subject  was  brought  before  the  United  States  Circuit 
Court  for  the  southern  district  of  California  in  Commission  v. 
Southern  Pacific  Company  etal,  123  Fed.  Rep.  597,  in  a  suit  to 
enforce  the  order  of  the  Commission  requiring  the  railroads  to 
desist  from  the  enforcement  of  the  rule  reserving  to  the  initial 
carrier  the  unqualified  right  of  routing  beyond  its  own  terminal 
all  shipments  made  under  an  established  through  rate.  The 
Court  said  that  as  the  Commission  found  that  the  rule  and  the 
practice  thereunder  worked  an  undue  and  unreasonable  preju- 
dice to  certain  shippers  of  citrus  fruits,  it  followed  that  the 
orders  of  the  Commission  forbidding  the  enforcement  and 
maintenance  of  the  rule  were  lawful  orders.  The  Court  in  this 
case  cited  and  applied  the  decision  of  the  Supreme  Court  con- 
struing this  section  in  the  Chattanooga  Rate  case,  1S1  U.  S. 
1,  supra.  On  final  hearing  of  this  case,  132  Fed.  Rep.  829 
(Sept.  1901),  the  arrangement  between  the  initial  and  connect- 
ing carriers  was  held  to  constitute  a  "  traffic  pool  "  violative 
of  section  5.     See  infra,  section  5. 

§  198.  Undue  preference  in  arbitrary  division  of  terri- 
tory.—  Another  practice  condemned  by  the  Commission  as 
violative  of  the  rights  of  shippers  in  creating  undue  preference 
was  the  arbitrary  division  of  territory  under  the  agreement  of 
the  Southern  Railway  and  Steamship  Association,  6  I.  C.  C. 
R.  195,  whereunder  the  Commission  found  that  the  rates  on 
traffic  of  certain  classes  were  made  higher  from  Chicago  and 
Cincinnati  to  southern  territory  than  they  otherwise  would  be,, 
for  the  purpose  of  securing  to  the  lines  from  the  northeastern 
cities,  transportation  of  that  traffic  from  the  territory  set  apart 

16 


212  INTERSTATE    COMMERCE    ACT.  [SeCTIOX    3. 

to  them  under  the  agreement,  and  that  this  raised  the  pre- 
sumption of  the  unreasonableness  of  the  rates  in  such  territory. 
The  Commission  found  that  this  division  of  territory  was  with- 
out warrant  in  law  and  to  have  been  made  for  the  benefit  of 
carriers  without  regard  to  the  interests  of  shippers  in  the  ter-  , 
ritory,  to  whom  it  was  in  effect  a  denial  of  the  privilege  of 
shipping  their  goods  to  market  by  the  line  or  route  they  may 
prefer.  See  also  8  I.  C.  C.  R.  185,  wherein  the  Commission 
made  a  report  on  the  export  rates  from  points  east  and  west 
of  the  Mississippi  river,  and  said  that  it  was  neither  sound  in 
principle  or  equitable  in  practice  for  railroad  lines  to  create 
artificial  differential  in  the  rates,  whereby  the  product  of  one 
section  is  assigned  to  one  market  and  the  product  of  another 
section  assigned  to  another  market. 

§  11)0.  Rate  wars  and  limine  preferences. —  The  relation  of 
rate  wars  to  the  reasonableness  of  rates  was  considered  under 
section  1,  supra,  §  141,  2  I.  C.  C.  R.  231  and  2  Int.  Com.  Rep. 
137.  In  the  rate  war  prevailing  in  the  southern  freight  traffic 
in  June  and  July,  1891,  great  disparities  in  rates  were  sud- 
denly produced  at  intermediate  points  by  the  large  reduction 
in  rates  to  Knoxville  at  the  commencement  of  this  war.  See  6 
I.  C.  C.  R.  632.  The  Commission  made  an  inquiry  of  its  own 
motion.  7  I.  C.  C.  R.  177;  see  also  Eighth  Annual  Report  of  the 
Commission,  1891,  pp.  20  to  24.  The  Commission  held  that  the 
maintenance  of  the  usual  rates  to  intervening  points  during 
the  period  of  such  reduced  rates  to  the  terminal  points  was  an 
unwarranted  discrimination  and  entitled  the  shippers  from  in- 
termediate points  to  reparation  for  the  excess  paid  by  them 
during  such  rate  war.  On  the  subject  of  passenger  rates  and 
rate  wars,  see  also  2  I.  C.  C.  R.  543  and  2  Int.  Com.  Rep.  340. 

These  decisions  of  the  Commission  were  rendered  especially 
in  view  of  the  long  and  short  haul  requirement  of  section  4, 
and  prior  to  the  ruling  of  the  Supreme  Court  that  railroad 
competition  created  a  dissimilarity  of  conditions  within  the 
meaning  of  the  section.  The  ruling  however  of  the  Supreme 
Court  that  the  competitive  rate  must  be  remunerative  (see 
supra,  §  175  ),  would  of  itself  prevent  the  extreme  reductions 
condemned  by  the  Commission. 

As  to  undue  preference  and  discrimination  in  passenger 
rates,  see  supra,  section  2. 


§  200.]  INTERSTATE    COMMERCE    ACT.  243 

As  to  applications  for  injunctions  in  rate  wars  by  carriers 
and  shippers,  see  annual  report  of  1896,  page  43. 

For  account  of  "rate  war"  injunctions  Hied  by  a  competing 
carrier,  a  trust  company  representing-  security  holders  of  the 
carrier,  and  a  complaining  shipper  during  rate  war  between 
Seaboard  Air  Line  and  the  Southern  Railway  Company  in 
1896,  see  annual  report  of  Commission  for  189G,  page  43. 

§  '200.  Discrimination  in  kinds Df  traffic. — The  first  para- 
graph of  section  3  also  prohibits  any  undue  or  unreasonable 
preference  or  advantage  of  any  particular  description  of  traffic 
in  any  respect  whatever.  It  was  held  in  the  Oregon  Short 
Line  &  U.  X.  R.  Co.  v.  Northern  Pacific  Railway  Co.,  ninth  cir- 
cuit, 9  C.  C.  A.  409,  61  Fed.  Rep.  15S,  that  this  first  paragraph 
of  the  third  section  forbidding  discriminations  against  any 
locality  or  description  of  traffic  is  for  the  protection  of  the 
locality  or  traffic  itself,  and  cannot  be  invoked  by  a  carrier 
against  a  connecting  carrier  for  alleged  discriminations  in  the 
matter  of  requiring  prepayment  of  freight  and  car  mileage. 
The  Court  said  that  it  was  not  competent  for  a  railroad  com- 
pany to  appropriate  the  grievances  of  a  citizen  or  locality  un- 
der section  3  and  complain  on  account  of  it. 

Goods  offered  for  shipment  from  a  given  point  must  be  car- 
ried for  the  established  rate  from  such  point,  in  the  absence  of 
a  through  routing,  regardless  of  the  point  where  the  goods 
originated.  Bigbee  Packet  Co.  v.  M.  &0.  R.  Co.,  ( So.  Dist.  of 
Ala.)  60  Fed.  Rep.  545;  4  I.  C.  C.  R.  611,  3  Int.  Com.  Rep.  515. 

Discriminations  against  kinds  of  traffic  are  sometimes  in- 
volved with  discriminations  against  localities  where  the  indus- 
tries discriminated  against  are  established.  This  is  illustrated 
in  the  litigation  between  the  packing  houses  of  Chicago  and 
those  which  have  been  established  in  the  stock  raising  sec- 
tions of  the  west,  where  the  industries  located  at  Chicago  are 
thus  directly  concerned  in  keeping  down  the  rates  on  live  stock 
to  that  point  as  compared  with  the  rates  on  packing  house 
products.  See  4  I.  C.  C.  R.  158,  3  Int.  Com.  Rep.  233  where 
the  differential  between  rates  on  live  stock  and  packing 
house  products  from  the  Missouri  river  to  the  city  of  Chicago, 
was  held  discriminated  against  the  packing  house  industries 
located  in  Chicago.  The  same  discrimination  as  to  the  same 
kinds  of  traffic  was  thoroughly  considered  in  the  case  of  the 


244  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

Chicago  Live  Stock  Exchange  in  10  I.  C.  C.  R.  428.  See  also 
4  I.  C.  C.  R.  Gil,  3  Int.  Com.  Eep.  515,  as  to  the  rates  on  live 
hogs  and  dressed  products  to  and  from  Boston.  The  same  al- 
leged discrimination  between  kinds  of  traffic  and  localities 
wherein  the  competing  industries  were  located  were  shown  in 
the  complaint  of  the  Missouri  and  Kansas  millers  against  the 
differential  between  wheat  and  flour,  where  the  discrimina- 
tion operated  in  favor  of  the  Texas  mills  as  against  the  mills 
of  Missouri  and  Kansas.    See  infra,  §  203. 

Questions  of  undue  preferences  of  kinds  of  traffic  have  been 
raised  by  manufacturers  in  respect  to  raw  material  and  man- 
ufactured product  for  the  protection  of  their  local  industries 
against  competition,  and  also  by  the  manufacturers  of  and 
dealers  in  commodities,  which  were  commercially  competi- 
tive, as  anthracite  and  bituminous  coal,  4  I.  C.  C.  K.  535, 
3  Int.  Com.  Eep.  460,  and  live  hogs  and  cattle  and  the 
dressed  products  of  each,  4  I.  C.  C.  R.  611,  3  Int.  Com.  Eep. 
515.  This  question  of  undue  preference  to  particular  kinds  of 
traffic  was  also  involved  with  the  subject  of  carload  and  less 
than  carload  rates,  supra,  §  157.  See  3  I.  C.  C.  E.  473, 
2  Int.  Com.  Eep.  742;  5  I.  C.  C.  R.  638,  4  Int.  Com.  Eep. 
2S5. 

§  201.  Preferences  against  traffic— Must  involve  injury. 
Undue  preference  against  traffic  must  ordinarily  be  such  that 
injury  is  caused  thereby  to  some  party  of  locality.  The  Com- 
mission said  in  10  I.  C.  C.  E.  173,  one  of  the  Louisville  Stock- 
yards cases,  with  reference  to  a  claim  that  a  refusal  to  receive 
carloads  of  live  stock  from  a  connecting  carrier,  when  carloads 
of  dead  freight  were  received,  that  this  involved  an  undue 
preference  of  the  dead  freight,  that  this  refusal  to  receive  live 
stock  did  not  in  any  respect  benefit  dead  freight.  If  an  un- 
due discrimination  was  found,  the  carrier  might  comply  with 
the  order  by  ceasing  to  deliver  dead  freight,  and  if  this  latter 
alternative  was  adopted,  complainant  would  not  be  benefited 
and  other  shippers  would  be  greatly  injured.  See  also  Butch- 
ers &  Drovers  Stockyards  Co.  v.  L.  &  N.  E.  Co.,  14  C.  C.  A. 
290,  67  Fed.  Eep.  35,  supra. 

When  manufacturing  industries  are  established  in  localities 
it  often  happens  that  a  slight  change  in  the  adjustment  of 
transportation  charges  as  to  the  raw  material  and  manufac- 


§  202.]  INTERSTATE    COMMERCE    ACT.  245 

tured  product  or  article  may  be  sufficient  to  close  manufac- 
turing plants  at  some  points  and  increase  the  output  at  others 
located  elsewhere.  It  was  held  by  the  Commission  in  a  recent 
case,  January  1005  (the  Chicago  Live  Hogs  Exchange  case, 
supra),  that  the  very  fact  that  large  live  stock  markets  and 
packing  centres  had  been  built  up  and  maintained  under  a 
former  relation  of  rates  necessarily  qualified  the  right  of  the 
carrier  to  change  his  rate  on  packing  house  products  for  the 
purpose  of  increasing  his  business,  when  that  change  would 
operate  to  destroy  industries  that  had  been  built  up  in  reliance 
on  the  former  relation  of  rates.  In  this  case  it  was  found  that 
the  discrimination  between  live  stock  products  in  the  territory 
west  of  Chicago  was  not  justified  by  a  difference  in  the  cost 
of  transportation  or  otherwise. 

In  the  same  case  it  was  said  that  improvements  made  dur- 
ing recent  years  in  roadbed  and  equipment  of  carriers  had  ren- 
dered the  item  of  risk  in  many  cases  of  little  consequence  in 
determining  the  relation  of  rates  between  two  articles.  The 
value  of  the  articles  is  of  course  material,  and  the  relation  be- 
tween the  articles  transported  is  also  important. 

§202.  A  reasonable  regulation  of  carload  weights  not 
preferential. —  It  was  ruled  in  7  I.  C.  C.  E.  255,  that  a  rule 
made  by  a  carrier  which  had  not  provided  track  scales  at  sta- 
tions, forbidding  shippers  to  load  cars  above  a  specified  weight 
of  marked  capacity  of  the  car  under  the  so-called  penalty  of 
an  increased  rate  on  the  excess  weight,  was  not  unlawful,  pro- 
vided the  increase  in  charges  for  the  excess  weight  was  not 
unreasonable,  and  the  margin  between  such  maximum  and  the 
carriers'  minimum  of  carloads  of  grain  was  so  wide  that  ship- 
pers could  readily  comply  with  both  rules.  Such  rules  how- 
ever must  be  shown  upon  the  carriers'  posted  schedule.  See  in- 
fra, section  6.  In  this  case  it  was  also  ruled  that  rules  for 
minimum  carload  weights  for  corn  or  other  grain  which  var- 
ies with  the  size  of  cars  furnished  by  the  carrier  are  unreason- 
able, in  that  they  would  inevitably  confuse  and  puzzle  shippers 
and  consignees,  and  subject  them  to  excessive  charges  resulting 
from  arbitrary  weights,  and  increase  the  number  of  over- 
charge claims  and  afford  many  opportunities  for  discrimina- 
tion in  rates  between  competing  shippers.  The  Commission 
said  therefore  that  the  carrier  should  enforce  a  fixed  and  rea- 


246  INTERSTATE    COMMERCE    ACT.  [SECTION   3. 

sonable  minimum  carload  rate  for  corn  and  other  "rain  irre- 
spective  of  the  capacity  of  the  cars  furnished  by  it  to  shippers. 

In  another  case,  3  I.  C.  C.  B.  241  and  2  Int.  Com.  Rep.  509, 
the  Commission  held  that  a  rule  was  reasonable  which  pre- 
scribed the  minimum  weight  of  a  carload  of  cattle  at  a  certain 
rate,  and  then  charged  by  the  hundred  pounds  for  any  excess 
of  weight  over  the  minimum.  The  Commission  said  that  such 
a  rule  was  more  just  and  reasonable  than  the  practice  of  mak- 
ing a  carload  rate  irrespective  of  weight,  leaving  the  shipper 
to  load  into  the  car  as  many  cattle  as  he  pleased  and  was  able 
to  put  into  it,  and  the  fact  that  some  difficulties  were  found  to 
exist  in  the  prompt  and  accurate  weighing  of  the  cattle  was 
not  a  reason  for  abolishing  the  new  rule,  but  rather  for  im- 
proving and  perfecting  it. 

§203.  Differentials  between  grain  and  grain  products. — 
This  question  has  been  extensively  discussed  before  the  Com- 
mission. The  millers  located  in  wheat  producing  territory 
strongly  insisted,  that  flour  being  more  easily  handled,  was  en- 
titled to  at  least  an  equal  rate  with  wheat.  On  the  other 
hand,  the  millers  located  in  Texas  out  of  the  wheat  producing 
territory  were  directly  interested  in  a  high  differential  be- 
tween wheat  and  flour,  so  as  to  at  once  secure  an  adequate 
supply  of  wheat  and  exclude  competing  flour.  It  appeared 
from  the  testimony  in  the  proceeding  instituted  before  the 
commission  by  the  millers  of  Missouri  and  Kansas  that  the 
Texas  railroads  were  in  the  habit  of  increasing  this  differen- 
tial during  harvest  time  for  the  benefit  of  the  Texas  flour  mills. 
The  Commission  ruled,  4  I.  C.  C.  R.  417,  and  3  Int.  Com.  Rep. 
400,  that  a  differential  of  five  cents  per  hundred  pounds,  that 
is,  five  cents  per  hundred  pounds  higher  on  flour,  was  warranted 
by  the  peculiar  conditions,  but  that  a  larger  differential,  such 
as  had  been,  maintained  for  considerable  periods,  worked  an  un- 
just discrimination  and  was  unlawful. 

In  S  I.  C.  C.  R.  304,  decided  some  nine  years  later,  the  Com- 
mission reaffirmed  this  decision  saying  that  the  advantages 
were  not  sufficient  to  warrant  interference  with  the  established 
differential;  and  in  the  same  opinion,  the  differential  between 
corn  and  corn  meal  in  the  same  territory  was  made  not  to  ex- 
ceed three  cents  per  hundred  pounds.  This  ruling  was  again 
reaffirmed  in  Januarv  1004.     10  I.  C.  C.  R.  35. 


§§  204,  205. J  INTERSTATE    COMMEKCE    ACT.  247 

In  cases  from  other  sections  of  the  country  it  was  held  that 
grain  and  grain  products  were  presumptively  entitled  to  equal 
rates.  See  8  I.  C.  C.  E.  214,  where  the  Commission  ruled  that 
an  equal  rate  on  wheat  and  flour  in  the  export  trade  was  pre- 
sumptively proper,  but  that  in  view  of  all  the  conditions  shown 
in  the  investigation,  the  differential  rate  for  export  should  not 
exceed  two  cents  per  hundred  pounds. 

§204.  The  Commission  not  concluded  by  ruling  of  State 
Commission. — In  the  case  last  cited  it  was  shown  that  by  the 
State  law  or  by  the  rulings  of  State  Commissions  a  shipper  in 
Kansas  or  Missouri  of  cattle  consigned  to  a  point  in  the  State 
was  entitled  to  load  the  car  at  discretion  without  the  charge 
being  increased  thereby.  But  the  Commission  said  that  while 
such  action  of  the  State  authorities  had  always  been  treated  with 
respect,  it  was  in  no  wise  conclusive  upon  the  Interstate  Com- 
merce Commission  in  the  regulation  of  interstate  commerce,  as 
the  Commission  thought  that  the  action  of  the  carriers  in 
prescribing  rates  for  the  transportation  of  cattle  by  weight 
instead  of  by  carload  was  not  in  itself  illegal  and  was  in  accord 
with  the  general  practice  as  to  the  regulation  of  carrier's 
charges.  The  State  action  therefore  could  not  be  allowed  to 
control  the  matter  which  was  within  the  Federal  jurisdiction. 

§  205.  Discrimination  in  mode  of  shipment. —  Undue 
preference  may  consist  not  only  in  a  differential  rate,  that  is, 
a  difference  in  rate  not  warranted  by  the  character  of  the  com- 
modity or  any  consideration  relating  to  the  cost  of  service,  but 
also  in  any  discrimination  in  the  performance  of  any  of  the 
duties  of  the  carrier,  or  any  accessorial  services  rendered.  This 
is  illustrated  in  the  rulings  of  the  Commission  upon  the  subject 
of  the  alleged  discriminations  in  the  shipment  of  oil  in  tanks 
as  against  the  shipment  in  barrels.  Thus  it  was  held  in  1  I.  C. 
C.  E.  503  and  1  Int.  Com.  Eep.  722,  that  when  oil  is  trans- 
ported in  tanks  permanently  affixed  to  car  bodies,  the  tank  is 
to  be  considered  as  part  of  the  car,  and  for  oil  transported 
therein  the  charge  for  transportation  should  be  the  same  by 
the  hundred  pounds,  that  the  carrier  charges  for  transporta- 
tion between  the  same  points,  of  barrels  filled  with  like  oil  and 
taken  in  carload  lots,  and  that  the  carrier  was  guilty  of  unjust 
discrimination  if  the  shipper  in  barrels  was  charged  a  higher 
rate.     See  also  2  I.  C.  C.  K.  90,  2  Int.  Com.  Eep.  67. 


248  INTERSTATE    COMMERCE    ACT.  [SECTION   3. 

In  the  case  last  cited,  on  account  of  the  difference  in  ex- 
pense of  service  a  higher  rate  for  the  oil  in  barrels  in  less  than 
carload  lots  as  compared  with  oil  in  carload  lots  was  sus- 
tained. 

The  allowance  by  a  carrier  to  a  shipper  of  oil  in  tanks  of 
forty-two  gallons  or  any  number  of  gallons  for  alleged  leakage 
and  waste  in  the  transportation,  in  the  absence  of  a  corre- 
sponding allowance  to  shippers  in  barrels,  was  an  unjust  dis- 
crimination and  unlawful,  4  I.  C.  C.  R.  131,  3  Int.  Com.  lie]). 
162.  There  was  no  objection  however  to  the  use  of  estimated 
or  constructive  weights,  provided  the  method  of  estimating 
works  no  inequality  in  its  practical  application  to  competing 
modes  of  conveyance. 

It  is  the  duty  of  the  carrier  to  equip  its  road  with  the  means 
of  transportation,  and  in  the  absence  of  exceptional  conditions, 
those  means  must  be  open  impartially  to  all  shippers  of  like 
traffic.  If  the  carrier  transports  freight  in  cars  owned  by  the 
shipper,  it  must  be  upon  such  terms  as  shall  not  constitute  an 
unjust  discrimination  against  shippers  of  like  traffic,  who  are 
excluded  from  the  use  of  such  private  cars.  Where  the  use  of 
a  class  of  private  cars,  such  as  tank  cars,  is  not  opened  to  ship- 
pers impartially,  but  is  practically  limited  to  one  class  of  ship- 
pers, and  the  charge  for  a  barrel  package  in  barrel  shipments 
in  the  absence  of  a  corresponding  charge  on  the  tank  ship- 
ments results  in  a  greater  cost  for  the  transportation,  it  is 
undue  preference  and  discrimination.  5  I.  C.  C.  Ii.  415,  4  Int. 
( !om.  Rep.  1G2. 

§  206.  Classification. —  The  subject  of  undue  preference 
against  kinds  of  traffic  necessarily  involved  the  question  of 
classification.  The  strict  apportionment  of  a  cost  of  service  on 
all  classes  of  commodities  equally  would  be  impracticable,  for 
the  reason  that  articles  which  are  bulk}7  and  cheap  would  be 
unable  to  bear  the  burden  of  transportation,  as  their  value 
would  be  confiscated  by  the  cost  of  transportation  for  any  con- 
siderable distance.  It  is  universally  recognized  therefore  that 
in  order  that  such  articles  as  grain  and  its  products,  fuel,  lum- 
ber and  ore  can  be  transported  at  low  rates  which  they  can 
stand,  it  is  necessary  for  the  carrier  to  charge  upon  the 
other  classes  of  goods,  which  comprise  greater  value  in  smaller 
compass,  a  greater  proportionate  rate.     Upon  this  necessity 


§§  207,  20S.]  INTERSTATE    COMMERCE    ACT.  249 

are  based  the  principle  and  practice  of  classification  of  freight 
traffic,  which  have  been  exhaustively  discussed  in  the  reports 
of  the  Interstate  Commerce  Commission,  see  report  of  1888, 
page  34.  The  Commission  has  also  repeatedly  urged  upon  the 
railroads  the  adoption  of  a  uniform  classification.  See  report  of 
1S91,  page  23,  and  report  of  1894,  page  34. 

Commodities  not  classified,  are  given  what  is  known  as  com- 
modity rates.  Thus  salt  requires  and  receives  a  commodity 
rate  lower  than  class  rates.  The  Commission  said  in  5  I.  C.  C: 
R.  299,  4  Int.  Com.  Rep.  33,  that  the  carriers  should  only  be 
limited  as  to  such  low  rating  by  the  rule  that  a  commodity, 
should  not  be  carried  at  such  unremunerative  rates,  as  will  im- 
pose burdens  upon  other  articles  transported  to  recoup  losses  in 
carrying  that  commodity. 

§  207.  Consultation  of  carriers  in  classification  not  ille- 
gal combination. — In  the  report  of  1899,  pp.  12  to  20,  the  Com- 
mission discussed  the  question  of  the  advance  in  freight  rates 
by  the  carriers  using  what  is  known  as  the  official  classification, 
covering  the  territory  lyingeast  of  the  Mississippi  and  north  of 
the  Ohio  and  Potomac  rivers,  and  in  that  connection  gives  the 
opinion  of  the  Attorney-General  of  December  30,  1899,  to  the 
effect  that  consultation  by  the  representative  railroad  men  in 
the  committee  respecting  suggested  changes  in  classification, 
and  subsequent  independent  action  by  the  respective  railroad 
companies  by  the  adoption  of  the  new  classification  recom- 
mended, in  the  absence  of  any  testimony  of  compulsion  or 
combination  in  adopting  a  classification,  was  not  in  violation 
•  of  the  Anti-Trust  law. 

§  208.  Undue  preference  iu  classification. —  Undue  prefer- 
ence may  be  effected  by  discrimination  in  classification  between 
commodities  which  are  in  fact  competitive,  where  such  classi- 
fication is  not  based  on  a  difference  in  the  cost  of  service.  The 
English  statute  of  1854  was  construed  as  imposing  upon  the 
carrier  the  burden  of  justifying  such  discrimination  by  con- 
siderations relating  to  the  cost  of  carriage.  Oxlade  v.  JST.  E.  Ry. 
Co.,  1  Ry.  &  Canal  Traffic  Cases,  73;  Thompson  v.  London 
&  N.  W.  Ry.  Co.,  2  Ry.  &  Canal  Traffic  Cases,  115.  This 
general  principle  has  been  applied  by  the  Commission  in  a  vari- 
ety of  cases.  Thus,  the  advance  of  hay  and  straw  from  the 
•6th  to  the  5th  class  on  the  official  classification  of  January  1, 


250  INTERSTATE    COMMERCE    ACT.  [SECTION    '■'. 

1900  (see  9  I.  C.  C.  It.  264),  was  held  unreasonable  and  unjust 
as  resulting  in  unlawful  discrimination  and  prejudice  against 
the  localities  where  such  commodities  are  produced,  and 
against  producers,  dealers  and  consumers.  As  to  the  governing 
principles  of  freight  classification,  see  6  I.  C.  C.  R.  148  and  4 
Int.  Com.  Rep.  525;  0  I.  C.  C.  R.  78.  See  also  3  I.  C.  C.  R. 
473.  2  Int.  Com.  Rep.  742. 

In  41.  C.  C.  E.  212,  3  Int.  Tom.  Rep.  25T,  it  was  said  that 
where  questions  of  classification  and  rates  are  involved  as  to 
one  particular  article  of  freight,  it  is  often  necessary  to  exam- 
ine and  consider  the  classifications  and  rates  upon  other  articles 
in  which  the  same  calculations  in  respect  to  value,  bulk  and 
expense  of  handling  and  carriage  would  to  a  considerable  ex- 
tent enter.  For  the  purpose  of  such  comparison  it  is  not  in- 
dispensably necessary  that  the  articles  should  be  competitive, 
though  if  they  are  competitive,  then  this  feature  is  held  partly 
to  be  considered.  The  proper  method  of  determining  the 
justice  of  classification  by  comparison,  is  with  classification 
created  by  the  carrier  for  analogous  articles.  5  I.  C.  C.  R.  63S, 
4  Int.  Com.  Rep.  285.  The  fact  that  different  rates  and  classi- 
fications are  in  force  in  different  sections  of  the  country  would 
not  of  itself  warrant  an  extention  of  the  lower  rate  of  classi- 
fication to  the  higher  rate  and  classification  as  applied.  There 
must  be  proof  of  unlawful  discrimination  or  disadvantage  or 
unreasonably  higher  rates  to  procure  an  order  directing  differ- 
ent rates  and  classification.     G  I.  C.  C.  R.  Gl. 

In  G  I.C.  C.  R.  85,  a  commodity  (i.  e.  not  classified)  rate 
published  for  intending  settlers  only,  but  in  fact  given  to  ship- 
pers indiscriminately,  was  condemned  by  the  Commission  as 
calculating  to  mislead  the  public  and  afford  an  opportunity  for 
favoritism. 

For  illustrations  of  the  rulings  of  the  Commission  in  cases  in 
classification,  see  2  I.  C.  C.  R.  1,  2  Int.  Com.  Rep.  1,  where 
classification  of  dried  fruit  and  raisins  in  two  different  classes 
was  held  unreasonable. 

Hub  blocks  were  classed  with  lumber,  instead  of  with  un- 
finished wagon  materials.  2  I.  C.  C.  R.  122,  2  Int.  Com. 
Rep.  -1. 

In  1  I.  C.  C.  R.  393,  1  Int.  Com.  Rep.  685,  railroad  ties- 
were  classed  witli  other  rouffh  lumber. 


§    209.]  INTERSTATE    COMMERCE    ACT.  251 

In  2  I.  C.  C.  E.  573,  2  Int.  Com.  Rep.  403,  Ilostetter's  Stom- 
ach Bitters  were  held  not  properly  classified  in  the  first  class 
with  other  liquids  similar  in  character.  In  4  I  C.  C.  It.  32,  3 
Int.  Com.  Hep.  74,  patent  medicines  were  held  properly  classed 
at  a  higher  rate  than  ale,  beer  and  mineral  water. 

In  4  I.  C.  C.  R.  41,  3  Int.  Com.  Rep.  77,  toilet  soap  was  held 
properly  classed  higher  than  laundry  soap,  the  Commission 
holding  that  manufacturer's  description  of  his  production  for 
commercial  purposes  warranted  a  classification  accordingly. 
See  also  4  I.  C.  C.  R.  733,  3  Int.  Com.  Rep.  564. 

5  I.  C.  C.  R.  663,  4  Int.  Com.  Rep.  31S,  held  that  celery  was 
properly  classified  with  vegetables  rather  than  with  fruits.  In 
6  I.  C.  C.  R.  14S,  in  view  of  the  great  reduction  in  value  of 
window  shades,  the  classification  as  first  class  was  held  unrea- 
sonable. The  United  States  Circuit  Court,  in  64  Fed.  Rep.  724 
declined  to  enforce  this  order  on  the  ground  that  it  applied  to 
shades  having  a  very  high  value  as  well  as  to  the  cheaper  varie- 
ties, and  the  order  was  amended  accordingly.    6 1.  C.  C.  R.  548. 

In  7  I.  C.  C.  R.  40,  open-end  envelopes  were  held  properly 
classed  with  merchandise  envelopes. 

In  S  I.  C.  C.  R.  36S,  iron  pipe  and  fittings  packed  in  cases 
were  held  properly  classed  higher  than  iron  pipe  and  fittings 
packed  in  barrels.  0  I.  C.  C.  R.  61,  held  that  there  were  condi- 
tions compelling  a  low  rate  upon  flour  which  did  not  apply  in 
the  transportation  of  cerial  products. 

In  4  I.  C.  C.  R.  212,  3  Int.  Com.  Rep.  257,  the  principles  of 
classification  were  discussed,  and  applied  in  the  case  of  surgi- 
cal chairs.  In  10  I.  C.  C.  R.  281,  cow-peas  were  held  properly 
classed  with  grain,  and  not  with  fertilizers. 

§  209.  Power  of  the  Commission  in  correcting  classifica- 
tion.— The  Commission  has  in  a  number  of  cases  exercised  the 
power  to  order  a  change  in  the  classification,  as  in  the  cases  be- 
fore cited;  also  in  1   I.   C.  C.  R.  393,   1  Int.  Com.  Rep.  6S5; 

2  I.C.  C.  R.  122,   2  Int.  Com.   Rep.  SI;.  4  I.  C.  C.  R,  312, 

3  Int.  Com.  Rep.  257;  6  I.  C.  C.  R.  148,  4  Int.  Com.  Rep.  525. 
Assurance  made  by  a  carrier  that  if  one  will  locate  in  busi- 
ness on  the  line  of  his  road  his  property  shall  be  taken  for 
transportation  as  belonging  to  as  pecified  class,  it  was  ruled  by 
the  Commission  in  2  I.  C.  C.  R.  122,  2  Int.  Com.  Rep.  SI, 
could  not  bind  the  carrier  so  as  to  compel  a  classification  ac- 


252  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

cordingly.  There  can  be  no  contract  right  to  a  special  classi- 
fication, as  the  law  requires  uniformity  and  impartiality  in  the 
dealings  of  the  carrier  with  all  persons. 

It  will  be  seen  that  the  power  to  change  classification -would 
indirectly  involve  the  power  to  determine  rates.  The  Commis- 
sion ruled  in  9  I.  C.  C.  E.  78, 1.  c.  SO,  that  as  it  had  the  power  to  de- 
termine the  relation  in  the  rates  which  should  exist  between 
localities,  that  the  same  principle  should  apply  in  the  rela- 
tion between  two  commodities.  It  admitted  however  that 
the  authority  was  not  clear,  but  as  it  was  of  opinion  that 
there  was  a  plain  distinction  between  fixing  a  rate  and  deter- 
mining the  the  relation  of  rates,  the  Commission  would  con- 
tinue to  exercise  that  power  until  it  was  judicially  determined 
otherwise.  In  a  recent  case,  January  1905,  the  United  States 
Circuit  Court  for  the  northern  district  of  Ohio,  Commission 
v.  Lake  Shore  Eailroad  Co.,  et  al.,  it  was  held  that  while 
the  commission  had  the  power  to  order  certain  freight  taken 
from  the  fifth  class,  it  did  not  have  the  power  to  order  it  placed 
in  the  sixth  class.  In  other  words,  the  Commission  did  not 
have  the  power  to  order  the  classification  changed  which 
would  fix  a  definite  rate  for  the  future. 

§  "210.  Reasonable  regulations  in  classifications. — The 
Commission  has  ruled,  G  I.  C.  C.  R.  61,  that  the  fact  that  differ- 
ent rates  and  classifications  are  in  force  in  different  sections 
of  the  country  would  not  itself  warrant  an  extension  of  the 
lower  rate  and  classification  to  the  section  where  a  higher 
rate  and  classification  were  applied.  There  must  be  proof  of 
unlawful  discrimination  or  disadvantage  or  of  unreasonable 
higher  rates  to  justify  directing  an  order  for  changes  in  the 
classification.  In  this  case  it  was  ruled  that  a  mixed  carload  rate 
for  cereal  products  or  for  cereal  products  and  flour,  that  would 
have  the  effect  of  throwing  out  of  the  trade  many  competitors  of 
complainant,  or  the  manufacture  only  of  certain  kinds  of  cereal 
products  and  of  centralizing  the  business  in  the  hands  of  one  or 
more  of  the  dealers,  should  not  be  curtailed,  when  without  it  no 
wrong  is  done  to  any  one  and  the  market  is  open  to  all  compet- 
itors. The  Commission  said  therefore  that  to  obtain  the  abro- 
gation of  a  rule  in  classification  denying  a  mixed  carload  rate 
upon  specified  articles,  the  rule  should  be  shown  to  be  unrea- 
sonable, unfair  or  unjustly  discriminative. 


§  211.]  INTERSTATE    COMMERCE    ACT.  25& 

§  211.  Facilities  for  interchange  of  traffic. — The  second 
paragraph  of  the  third  section,  though  based  in  part  upon  the 
English  statute,  is  materially  different  therefrom,  and  the  dif- 
ference has  been  construed  as  substantial.  Thus  the  English 
statute  was  construed  as  empowering  the  court  to  compel 
through  routing  of  passengers  or  freight.  The  Commission 
held  in  an  early  case,  1  I.  C.  C.  E.  80,  1  Int.  Com.  Eep.  357, 
that  this  section  of  the  act  did  not  compel  one  railway  com- 
pany to  sell  through  passenger  tickets  over  the  road  of  another 
company.  In  the  Kentucky  and  Indiana  Bridge  case,  decided 
in  1S90,  which  was  really  the  pioneer  case  in  the  construction- 
of  the  act,  37  Fed.  Eep.  567,  Jackson  J.  said  that  the  Com- 
mission was  not  vested  with  authority  to  establish  through 
routes  nor  to  fix  through  rates  between  connecting  lines. 

It  has  since  been  definitely  determined  by  the  repeated  de- 
cisions of  the  Courts  that  there  is  no  authority  in  the  Commis- 
sion or  in  the  Courts  under  the  act  to  compel  either  the  rout- 
ing of  passengers  or  freight,  and  that  the  requirement  of  this 
section  for  the  affording  of  all  reasonable  and  proper  facil- 
ities for  the  interchange  of  traffic  and  the  receiving,  forward- 
ing and  delivery  of  passengers  and  property  does  not  mean 
the  receipt  and  delivery  of  cars  or  their  through  routing  of 
any  kind,  but  only  the  receipt  and  delivery  of  freight  and  pas- 
sengers at  connecting  points  without  discrimination.  This 
bad  been  the  construction  given  by  the  Supreme  Court  to  the 
constitution  and  statute  of  Colorado  prior  to  the  enactment  of 
the  Interstate  Commerce  Act.  A.  T.  &  S.F.  R.  Co.  v.  Denver 
&  N.  O.  E.  Co.,  110  U.  S.  667,  2S  L.  Ed.  291;  and  such  has 
been  the  construction  given  to  the  Interstate  Commerce  Act 
in  a  number  of  cases  in  the  Circuit  Courts  and  Circuit  Courts  of 
Appeal,  cited  approvingly  by  the  Supreme  Court  in  the  Cent- 
ral Stock  Yards  case,  supra,  192  U.  S.  56S,  48  L.  Ed.  565.  See 
also  Little  Eock  &  M.  E.  Co.  v.  St.  Louis  Iron  Mountain  &  So. 
E.  Co.,  41  Fed.  Eep.  559  and  59  Fed.  Eep.  400;  Oregon  Short 
Line  &  Utah  Northern  E.  Co.  v.  Northern  Pacific  E.  Co.,  61 
Fed.  Eep.  15S,  9  C.  C.  A.  409;  Allen  v.  Oregon  Eailroad 
&  Navigation  Co.,  98  Fed.  Eep.  616.  It  was  held  in  all  of 
these  cases  that  through  routing  of  passengers  or  freight 
depends  upon  contract  voluntarily  made  between  the  car- 
riers, and  there  is  no  power  in  the  Commission  or  Courts  to- 


'251  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

enforce  the  making  of  such  a  contract.  Prescott  cV  Arizona 
Central  R.  R.  Co.  v.  A.  T.  &  S.  F,  R.  Co.,  73  Fed.  Rep.  438, 
wherein  the  court  comments  on  apparently  different  ruling  in 
X.  Y.  &  Northern  R.  R.  Co.  v.  K  Y.  &  BT.  E.  R.  R,  Co.,  50 
Fed.  Rep.  867.  For  discrimination  by  carrier  between  com- 
peting local  transfer  companies,  see  St.  Louis  Drayage  Co.  v. 
L.  &  N*.  R.  R.  Co.,  65  Fed.  Rep.  39.  The  Commission  said 
that  in  the  Act  to  Regulate  Commerce,  Congress  intended 
to  effect  the  same  results  as  the  English  statute,  but  omitted 
the  machinery  necessary  to  accomplish  it,  and  it  was  there- 
fore recommended  that  the  Act  be  amended  in  this  par- 
ticular. The  Commission  has  in  its  annual  reports  recom- 
mended to  Congress  to  give  the  necessary  authority  by  new- 
legislation. 

A  rail  carrier  may  make  a  through  rate  with  one  line  of 
connecting  steamboats,  and  refuse  to  make  such  rates  with 
other  steamboats.  4  I.  C.  C.  R.  265,  3  Int.  Com.  Rep.  27S.  The 
words  "  track  and  terminal  facilities  "  in  this  section  refer  to 
all  raii  carrier,  or  a  carrier  part  rail  and  part  water,  but  not 
to  an  independent  water  line. 

§  212.  Discrimination  in  exacting  prepayment  from  con- 
necting carriers  not  unjust  discrimination. — Tt  follows  from 
the  principle,  that  through  routing  is  a  matter  of  contract, 
that  while  the  carrier  is  obliged  to  receive  passengers  and 
freight  from  other  roads  at  connecting  points,  it  is  not  obliged 
to  waive  the  requirement  of  prepayment,  and  it  therefore  fol- 
lows that  the  requirement  of  prepayment  on  freight  on  all  prop- 
erty received  from  one  carrier  and  not  exacting  such  prepay- 
ment from  a  competing  carrier  is  not  an  unjust  discrimination. 
See  Little  Rock  &  M.  R.  Co.  v.  St.  Louis  &  Southwestern  R. 
Co.,  11  C.  C.  A.  416,  and  Gulf,  Colorado  &  Santa  Fe  R.  (  o. 
v.  Miami  Steamship  Co.,  30  C.  C.  A.  142,  86  Fed.  Rep.  407; 
Ilwaco  Jiy.  6c  Navigation  Co.  v.  Oregon  Ry.  &  Navigation  Co.,' 
6  C.  C.  A.  495,  57  Fed.  Rep  673.  Little  Rock  &  M.  R.  R.  Co. 
v.  St.  L.,  I.  M.  &  So.  R.  R.  Co.,  59  Fed.  Rep.  400,  supra. 

213.  State  control  of  interchange  of  interstate  traffic.  — 
Quesions  have  arisen  out  of  the  anomalous  control  of  commerce 
by  governmental  authority  of  the  States  and  the  United  States, 
as  the  same  carriers  are  controlled  by  the  State  with  reference  to 
their  intrastate  traffic,  and  by  the  Federal  Government  as  to  in- 


g  214.]  INTERSTATE    COMMERCE    ACT.  255 

terstate  traffic.  A  belt  or  switching  railroad  is  subject  to  the 
State  authority  when  it  charges  local  rates  for  its  traffic  and 
makes  no  interstate  routing,  while  it  becomes  subject  to  the 
Federal  law  when  it  joins  with  other  carriers  in  making  through 
shipments  of  interstate  traffic.  In  the  Louisville  stockyards 
litigation,  under  the  provisions  of  the  State  Constitution  of 
Kentucky  it  was  claimed  that  the  defendant  company  was  re- 
quired to  receive  and  deliver  freight  in  the  carloads  to  any 
point  that  was  in  physical  connection  with  the  tracks  of  another 
company.  It  was  said  by  the  United  States  Court  of  Appeals 
for  the  sixth  circuit,  55  C.  C.  A.  63,  118  Fed.  Rep.  113,  that 
assuming,  without  deciding,  that  the  Kentucky  Constitution 
and  legislation  made  such  requirement,  that  the  State  could 
not  regulate  interstate  commerce,  using  the  term  in  the  sense 
•of  intercourse  and  interchange  of  traffic  between  the  states. 
The  power  of  the  State  to  require  connecting  tracks  between 
two  railroad  companies  at  an  intersection  for  the  transfer  of 
cars  used  in  the  local  business  of  such  line  of  railroad  was  con- 
ceded. In  the  case  before  the  court,  it  was  not  the  means  of 
making  a  physical  connection  with  other  railroads  that  was 
aimed  at,  but  it  was  sought  to  compel  the  cars  and  freight  re- 
ceived from  one  state  to  be  delivered  to  another  at  a  particular 
place  and  in  a  particular  way.  If  the  Kentucky  Constitution 
•could  be  given  any  such  construction,  it  would  follow  that  it 
could  regulate  interstate  commerce.  The  judgment  in  this 
case  was  affirmed  by  the  Supreme  Court,  in  192  U.  S.  5GS.  The 
latter  Court  did  not  decide  this  question  of  the  power  of  tl.e 
State  with  reference  to  interstate  traffic,  as  it  construed  the 
Kentucky  Constitution  as  referring  only  to  cases  where  freight 
was  destined  to  some  further  point  by  transportation  over  a 
connecting:  line.  It  will  be  seen  that  in  this  case  there  was  no 
authoritative  construction  of  the  State  Constitution  and  statute 
by  the  judiciary  of  the  state. 

At  the  time  this  suit  of  the  Central  Stockyards  was  filed  a 
proceeding  was  also  instituted  before  the  Interstate  Commerce 
Commission  by  the  Railroad  Commission  of  Kentucky,  and  the 
decision  of  the  Supreme  Court  was  followed  by  the  Commis- 
sion, dismissing  the  complaint.     10  I.  C.  C.  R.  173. 

§  214.  State  and  municipal  control  of  terminals. —  The 
last  clause  of  the  section,  providing  that  the  directing  of  facili- 


256  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

ties  for  interchange  of  traffic  should  not  be  construed  as  re- 
quiring the  carrier  to  give  use  of  its  tracks  or  other  terminal 
facilities  to  another  carrier  engaged  in  like  business,  was  con- 
strued by  the  United  States  Circuit  Court  of  Iowa,  in  State  of 
Iowa  v.  Chicago,  Milwaukee  cv;  St.  Paul  Railroad  Co.,  33  Fed. 
Rep.  391,  in  1887,  soon  after  the  adoption  of  the  Act.  The 
State  of  Iowa  liled  a  bill  in  the  State  court  against  the  defend- 
ant carrier  to  enforce  an  order  of  the  State  Board  of  Railroad 
<  Jommissioners  requiring  the  defendant  to  pass  cars  of  other 
companies  over  its  siding  in  the  city  of  Dubuque  at  reasonable 
rates  fixed  by  the  board,  the  sidings  having  been  laid  under 
the  permission  of  the  city  on  condition  that  they  should  be 
open  to  all.  The  defendant  carrier  moved  the  case  to  the 
United  States  Court,  there  being  no  diverse  citizenship,  on  the 
ground  that  a  federal  question  was  involved,  to-wit,  its  right 
in  interstate  traffic  under  section  3  of  the  Act.  The  Court  sus- 
tained motion  to  remand  the  case,  saying  that  the  provision 
in  the  section  as  to  the  terminal  facilities  simply  declared  that 
the  preceding  provision  of  the  section  should  not  be  deemed 
to  give  the  right  to  one  carrier  to  use  the  tracks  or  terminal 
facilities  to  another  carrier  in  like  business,  and  had  reference 
to  the  effect  of  the  Act  of  Congress,  and  to  nothing  else  saying: 
"If  the  defendant  company  by  a  contract  with  the  city  of 
Dubuque  has  bound  itself  to  allow  other  companies  to  use  part 
of  its  tracks  or  terminal  facilities,  this  clause  of  the  Act  of  Con- 
gress does  not  affect  such  a  contract  or  the  enforcement  thereof. 
So  also  if  the  State  of  Iowa  has  provided  by  proper  statute 
that  different  companies  may  have  a  joint  or  common  use  of 
certain  terminal  facilities,  the  rights  of  the  several  companies 
to  such  joint  use  are  not  affected  by  the  provisions  of  the  Inter- 
state Commerce  Act,  but  the  same  must  be  determined  by  the 
statutes  of  the  state."  See  also  Interstate  Stockyards  Co.  v. 
Indianapolis  U.  R.  Co.,  99  Fed.  Rep.  472,  where  there  was  a 
similar  state  and  municipal  regulation  for  the  use  of  the  term- 
inal tracks. 

§  215,  The  charging  of  local  rates  not  an  unjust  dis- 
crimination.—  As  through  rates  and  through  billing  are  a 
matter  of  agreement  between  the  carriers  in  interstate  com- 
merce, it  follows  that  when  a  carrier  with  whom  connecting 
carriers  decline  to  make  through  rates  delivers  freight,  it  only 


§   216.]  INTERSTATE    COMMERCE    ACT.  257 

has  the  right  to  demand  that  other  carriers  receive  from  and 
deliver  freight  for  transportation  at  their  published  local  tariff 
rates.  See  4  I.  C.  C.  R  265,  3  Int.  Com.  Rep.  27S;  3  I.  C.  C.  E. 
45o,  2  Int.  Com.  Rep.  721.  As  to  the  distinction  between 
local  and  through  rates,  see  supra,  section  2. 

It  was  ruled  by  the  Commission  in  7  I.  C.  C.  R.  323,  that  in 
the  absence  of  some  agreement  or  understanding  with  a  con- 
necting line  by  which  the  joint  tariff  rates  was  authorized,  a 
given  carrier  cannot  lawfully  apply  any  other  rates  than  those 
which  it  fixed  for  the  transportation  between  the  points  fixed 
by  its  railroad;  and  the  rates  so  fixed  are  the  only  lawful  rates 
which  the  carrier  may  charge  for  any  transportation  service 
which  it  may  perform.  The  only  rates  authorized  by  the  Act 
are  the  rates  established  by  a  single  carrier  upon  its  route  and 
the  joint  rates  over  continuous  lines  or  routes  operated  by 
more  than  one  carrier. 

But  while  a  carrier  is  not  bound  to  make  through  routing, 
and  in  the  absence  of  such  agreements  for  through  routing 
may  charge  its  regular  tariff  rates,  those  charges  must  be  rea- 
sonahle  for  the  service. 

In  Augusta  Southern  Ey.  Co.  v.  Wrightsville  &  T.  R.  Co., 
71  Fed.  Rep.  522,  the  court  held  that  in  the  absence  of  through 
routing  the  carrier  was  not  entitled  to  charge  the  full  local 
rate  permitted  by  the  state  law  on  freight  which  was  not 
in  reality  local,  but  through  freight.  The  decision  in  this 
case  however  cannot  be  reconciled  with  the  authorities  cited 
above  unless  upon  the  ground  that  the  rate  was  unreasonable 
per  se  for  the  service. 

§  216.  The  right  of  exclusive  through  routing. —  As 
through  routing  rests  upon  contract,  it  follows  that  a  carrier 
may  lawfully  make  a  contract  with  one  connecting  carrier  for 
through  routing  to  the  exclusion  of  another.  This  subject  has 
been  extensively  litigated  in  exclusive  contracts  in  what  are 
known  as  the  Live  Stock  cases.  While  it  is  the  duty  of  a  rail- 
road company  to  provide  suitable  facilities  for  receiving  and 
delivering  live  stock  at  its  stations  without  additional  compen- 
sation other  than  the  regular  transportation  charge,  it  may 
provide  these  facilities  by  making  an  exclusive  contract  with 
one  stockyards  company,  and  as  long  as  this  company  imposes 
no  charge  for  delivering  livestock  when  that  stock  is  taken  by 

17 


258  INTERSTATE    COMMERCE    ACT.  [SECTION    3. 

the  consignee  within  a  reasonable  time,  such  contract  is  not 
obnoxious  to  law.  Covington  v.  Keith,  130  IT.  S.  128,  35  L.Ed. 
73;  Butchers  A:  Drovers  Stockyards  Co.  v.  L.  &  X.  R.  Co.,  14 
0.  C.  A.  290;  Central  Stockyards  Co.  v.  L.  &  N.  K.  Co.,  55  C. 
C.  A.  63,  US  Fed.  Kep.  113,  192  U.  S.  508,  48  L.  Ed.  565. 

In  the  case  of  the  Interstate  Stockyards  Co.  v.  Indianapolis 
U.  R.  Co..  99  Fed.  Rep.  472,  the  Indiana  Circuit  Court  held  that 
a  belt  line  connecting  with  the  different  carriers  and  making 
agreements  for  continuous  shipments  of  interstate  commerce 
had  no  right  to  discriminate  against  different  stockyards  by 
refusing  to  deliver  stock  at  one  of  the  yards,  though  con- 
signed to  the  owner  for  care,  and  the  court  granted  a  tempo- 
rary injunction  against  the  discrimination.  In  this  case  how- 
ever the  terminal  road  was  expressly  required  by  the  State  sta- 
tute and  its  city  franchise  to  render  such  services  without  dis- 
crimination, and  it  seems  that  the  track  connection  had  been 
made  and  the  injunction  was  against  the  interruption  of  the 
service  theretofore  rendered. 

§217.  Contract  rights  of  trackage. —  In  the  absence  of 
statute  the  rights  of  a  railroad  company  under  a  lawful  agree- 
ment for  the  specified  use  of  the  tracks  of  another  railroad 
company  are  measured  in  respect  to  the  direct  use  in  the  terms 
of  the  contract,  and  the  provisions  of  the  Act  to  Regulate  Com- 
merce apply  to  the  situation  created  by  the  contract,  and  add 
no  authority  for  a  different  use  of  the  track.  3  I.  C.  C.  R.  519, 
2  Int.  Com.  Rep.  771.  In  this  case  it  was  ruled  by  the 
Commission  that  the  Rock  Island  Railway  Company  which 
operated  the  Union  Pacific  tracks  between  Kansas  City  and 
Topeka  upon  condition  that  no  intermediate  business  should 
be  done  by  the  Rock  Island  Company  on  any  part  of  the  line 
used  under  the  agreement,  the  Union  Pacific  Company  retain- 
ing the  control  of  the  road  and  supplying  accommodations 
between  the  intermediate  points  and  Kansas  City.  The  ma- 
jority of  the  Commission  said  that  such  running  arrangements 
existed  in  many  parts  of  the  country  and  were  of  great  service 
in  transportation.  Chairman  Cooley  doubted  the  validity  of 
the  contract,  but  agreed  that  the  Commission  had  no  jurisdic- 
tion to  interfere  with  the  arrangement. 

in  Union  Pacific  Railroad  Co.  v.  Chicago,  etc.,  R.  Co.,  103 
I".  S.  564,  41  L.  Ed.  265,  274,  the  Supreme  Court  held  that  a 


>§  218.]  INTERSTATE    COMMERCE    ACT.  259 

later  contract  made  between  the  same  parties  for  trackage 
rights  by  the  Rock  Island  Company  over  the  Union  Pacific 
tracks  from  Council  Bluffs  to  South  Omaha,  and  giving  the 
Union  Pacific  Company  the  right  to  operate  the  Rock  Island 
tracks  between  South  Omaha  and  Lincoln,  was  valid,  and  the 
Court  said  that  such  business  arrangements  were  in  accord 
with  the  policy  in  favor  of  continuous  lines  declared  by  Con- 
gress in  the  act  of  I860  (supra,  §  54),  and  that  a  railroad  could 
contract  to  give  another  running  rights  over  its  tracks  without- 
express  statutory  authority,  and  the  decree  of  the  court  below 
specifically  enforcing  the  contract  was  affirmed.  The  contract 
in  this  case  provided  that  the  Union  Pacific  Company  should 
do  no  intermediate  business  on  the  Rock  Island's  tracks. 

§  218.  Rights  of  connecting  carriers  as  to  milling  in 
transit  privileges. — As  through  routing  is  based  upon  contract 
and  the  relation  is  not  created  by  any  application  of  the  com- 
mon law  or  requirement  of  statute,  it  follows  that  any  rail- 
road company  may  decline  to  become  a  party  to  any  agree- 
ment for  through  routing  unless  the  terms  and  conditions  are 
satisfactory  to  it.  This  principle  has  been  applied  by  the 
Commission,  9  I.  C.  C.  R.  311,  to  the  privilege  of  milling  in 
transit  granted  by  some  roads.  As  before  shown  the  Commis- 
sion has  approved  of  this  practice  as  promotive  of  commerce 
but  no  authority  is  given  by  the  Act,  to  the  Commission,  to  reg- 
ulate the  granting  of  such  privileges.  The  Commission  ruled 
however  that  the  Boston  &  Maine  Railroad,  receiving  traffic 
from  the  west,  was  not  compelled  to  apply  that  rate  on  ship- 
ments of  feed,  ground  in  transit;  and  that  it  was  not  bound  b}7- 
a  private  arrangement  existing  between  the  shipper  and  the 
carrier  from  whom  he  received  the  privilege,  to  grind  his  corn 
in  transit.  It  was  ruled  in  the  same  case  however,  that  while 
the  connecting  carrier  was  not  bound  by  the  arrangement  for 
milling  in  transit,  it  could  impose  an  arbitrary  charge  in  addi- 
tion so  the  regular  through  rate  on  the  milled  product. 

As  to  right  of  carriers  to  judicial  protection  in  the  inter- 
change of  traffic,  see  infra,  section  S,  and  as  to  unlawful  com- 
binations interfering  with  such  interchanges,  see  infra,  sec- 
tion 10. 


260  interstate  commerce  act.  [section  4c. 

Section  4. 

Page. 

§  210.     Lone;  and  short  haul  provisions 260 

200.     History  of  the  section 260 

821.     " Under  similar  circumstances  and  conditions." 261 

222.     Competition  under  section  4  and  under  section  2 262 

323.     ••  Over  the  same  line."'  263 

224.     The  proviso  of  the  section 264 

22").     The  burden  of  proof. 264 

g  '2\\).  Long  and  short  haul  provisions. —  Sec.  4.  That  it 
shall  be  unlawful  for  any  common  carrier  subject  to  the 
provisions  of  this  act  to  charge  or  receive  any  greater  com- 
pensation in  the  aggregate  for  the  transportation  of  passen- 
gers or  of  like  kind  of  property,  under  substantiall}7  similar 
circumstances  and  conditions,  for  a  shorter  than  for  a  longer 
distance  over  the  same  line,  in  the  same  direction,  the  shorter 
being  included  within  the  longer  distance;  but  this  shall 
not  be  construed  as  authorizing  any  common  carrier  within 
the  terms  of  this  act  to  charge  and  receive  as  great  com- 
pensation for  a  shorter  as  for  a  longer  distance:  Provided, 
nou)(  ver,  That  upon  application  to  the  Commission  appointed 
under  the  provisions  of  this  act,  such  common  carrier  may,  in 
special  cases,  after  investigation  by  the  Commission,  be  author- 
ized to  charge  less  for  longer  than  for  shorter  distances  for  the 
transportation  of  passengers  or  property;  and  the  Commission 
may  from  time  to  time  prescribe  the  extent  to  which  such  des- 
ignated common  carrier  may  be  relieved  from  the  operation 
of  this  section  of  this  act. 

§  220,  History  of  the  section. — This  section  was  not  based 
upon  any  provision  in  the  English  statute,  and  it  was  more 
thoroughly  discussed  in  Congress  and  was  the  subject  of  more 
divergent  opinions  than  any  other.  The  House  bill,  known 
as  the  Reagan  Bill,  contained  an  absolute  prohibition  against 
charging  more  for  a  shorter  than  for  a  longer  distance,  even 
where  the  longer  distance  included  the  shorter;  while  the  Sen- 
ate bill,  known  as  the  Cullom  Bill,  contained  a  similar  prohibi- 
tion qualified  by  the  allowance  of  the  granting  of  exceptions 
by  the  Commission  in  special  cases.  The  section  in  its  present 
form  was  reported  by  the  Conference  Committee  of  the  two 
houses,  and  contained  the  words  "under  substantially  similar 
circumstances  and  conditions,"  then  introduced  into  the  fourth 
section  lor  the  first  time,  having  theretofore  been  incorporated 
into  the  second  section.  See  1  I.  C.  C.  11.  6,  1  Int.  Com. 
Rep.  278. 


§   221.]  INTERSTATE    COMMERCE    ACT.  201 

§  221.  "Under  similar  circumstances  and  conditions."  — 

The  judicial  discussion  of  the  section  has  turned  upon  the 
meaning  of  the  words  "  under  similar  circumstances  and  condi- 
tions "  and  upon  the  effect  of  competition  in  determining  dis- 
similarity of  circumstances  and  conditions.  In  one  of  the 
earliest  cases  decided  by  the  Commission,  June  15th  18ST,  on 
an  application  of  the  Louisville  &  Nashville  Railroad  Company 
for  relief  under  the  discretionary  power  given  by  the  Commis- 
sion, it  was  held  in  an  opinion  by  Chairman  Cooley,  1  I.  C.  C. 
R.  6,  1  Int.  Com.  Rep.  278,  that  the  existence  of  actual 
and  controlling  competition  in  respect  of  traffic  important  in 
amount  might  make  out  "dissimilar  circumstances  and  condi- 
tions," in  the  following  cases: 

(1)  When  the  competition  was  with  carriers  by  water  which 
are  not  subject  to  the  provisions  of  the  statute;  (2)  when  the 
competition  was  with  foreign  or  other  railroads  which  were 
not  subject  to  the  provisions  of  the  statute;  and  (3)  in  rare  and 
peculiar  cases  of  competition  between  railroads  which  are  sub- 
ject to  the  statute,  when  a  strict  application  of  the  general  rule 
of  the  statute  would  be  destructive  of  actual  competition. 

This  in  effect  left  with  the  railroads  to  determine  in  the  first 
instance  the  existence  of  these  rare  and  peculiar  cases  of  com- 
petition. Subsequently,  in  1 892,  the  Commission  overruled  this 
earlier  decision  so  far  as  it  prohibited  carriers  from  judging 
for  themselves  in  the  first  instance  as  to  railroad  competition, 
and  held  that  in  no  such  case  could  a  carrier  judge  for  itself, 
but  it  should  apply  to  the  Commission  under  its  power  to  grant 
relief, when,  after  investigation,  the  Commission,  if  satisfied  that 
that  the  interests  of  commerce  and  common  fairness  of  the 
carriers  so  required,  could  direct  that  an  exception  should  be 
made.  5  I.  C.  C.  R.  324,  4  Int.  Com.  Rep.  121 ;  5  I.  C.  C.  R. 
596,  4  Int.  Com.  Rep.  267. 

These  rulings  were  contested  in  the  courts,  and  five  years 
later,  in  1897,  the  Supreme  Court  overruled  the  Commission, 
and  established  the  rule  which  has  been  adhered  to  in  a  series 
of  decisions,  that  competition  of  any  kind,  that  is,  whether 
from  railroads  subject  to  the  act  or  not,  was  one  of  the  most 
obvious  and  effective  circumstances  that  made  the  conditions 
which  its  long  and  short  haul  would  provide  substantially  dis- 
similar, and  as  such  must  have  been  in  the  contemplation  of 
Congress  in  the  passage  of  the  Act  to  Regulate  Commerce,  and 


262  INTERSTATE    COMMERCE    ACT.  [SECTION    4. 

that  such  competition  when  controlling,  justified  the  carrier 
in  making  a  lower  rate  for  the  longer  haul,  not  as  a  matter  of 
grace  or  favor  from  the  Commission,  but  as  a  matter  of  right. 
Import  Hate  case,  162  U.  S.  107,  10  L.  Ed.  910;  Commission 
v.  Alabama  Midland  Railroad  Co.,  168  U.  S.  Ill,  12  L.  Ed.  Ill; 
L.  &  NT.  Railroad  Co.  v.  Behlmer,  175  U.  S.  61S,  11  L.Ed.  309; 
East  Tennessee,  Virginia  &  Georgia  Railroad  Co.  v.  Commis- 
sion. 181  U.  S.  1,  15  L.  Ed.  719,  729;  Commission  v.  L.  <fc  ]ST. 
R.  Co.,  L90  U.  s.  273,  17  L.  Ed.  1017. 

As  to  the  relation  of  this  ruling  to  the  prohibition  of  undue 
preferences  under  section  three,  and  as  to  the  power  of  the 
commission  to  determine  the  reasonableness  of  rates,  see  sec- 
tion three,  supra,  §  1S3.  In  9  I.  C.  C.  R.  531,  the  city  of 
"Wichita  complained  of  rates  on  grain  from  Wichita  to  Galves- 
ton. The  Commission  followed  the  ruling  of  the  Supreme 
Court  of  the  United  States  and  held  that  the  third  and  fourth 
sections  of  the  act  prohibited  disparity  of  rates  between  the 
longer  and  shorter  distance  points  provided  the  longer  distance 
competitive  point  rate  is  remunerative  and  the  shorter  distance 
point  rate  is  reasonable,  and  also  that  its  order  therefor  could 
be  directed  against  the  unreasonableness  of  the  Wichita  rate 
and  not  against  the  adjustment  of  rates.  See  also  9  I.  C.  C. 
R.  569. 

In  another  Wichita  case  the  Commission  had  ruled  before 
the  construction  of  the  section  by  the  Supreme  Court  that  any 
higher  charge  to  Wichita  from  Kansas  City  on  shipments  from 
Calveston  was  violative  of  section  four.  But  in  10  I.  C;  C.  R. 
460,  decided  in  January  1905,  the  Commission  said  that  this 
ruling  was  no  longer  applicable  since  the  decision  of  the  Su- 
preme Court,  and  that  the  carriers  are  not  prohibited  from 
charsrinff  the  higher  rate  from  New  Orleans  to  Wichita  and 
Kansas  City,  but  that  the  existing  differential  was  excessive 
and  unduly  preferential.     See  supra,  §  1S3. 

The  rule  is  based  on  distance  and  relates  to  actual  transpor- 
tation charges,  and  not  to  demurrage  charges,  which  are  in 
the  nature  of  charges  for  storage  in  the  cars  of  the  carrier.  S 
I.  C.  C.  R.  531. 

222.  Competition  under  section  4  and  under  section  2. 
It  was  held  in  Wight  v.  United  States,  supra,  that  the  phrase 
"under  similar  circumstances  and  conditions"  as  used  in  the 


§  223.]  INTERSTATE    COMMERCE    ACT.  2G3 

second  section,  refers  to  the  matter  of  carriage,  and  does  not 
include  competition  between  rival  routes.  This  was  in  a  case 
where  the  discrimination  was  between  two  shippers  in  the 
same  town.  It  was  said  by  the  Supreme  Court  in  the  Ala- 
bama Midland  case,  supra,  that  competition  under  section  4 
was  not  open  to  the  criticism  that  different  meanings  were  at- 
tributable to  different  words  under  different  sections  of  the  Act; 
that  as  the  purposes  of  the  several  sections  were  different,  the 
phrase  must  be  read  in  the  second  section  as  restricted  to  the" 
case  of  shippers  of  the  same  road,  thus  leaving  no  room  for 
the  operation  of  competition;  but  in  section  4,  which  covers 
the  entire  track  of  interstate  commerce,  a  meaning  must  be 
given  to  the  phrase  wide  enough  to  include  all  the  facts  which 
have  a  legitimate  bearing  on  the  situation,  among  which  is 
the  fact  of  competition,  when  it  effects  rates.  See  section  2, 
supra. 

§  223.  "Over  the  same  line." — The  view  was  expressed 
in  the  opinion  in  the  United  States  Court  of  Appeals,  Osborne 
v.  R  R.  Co.,  3  C.  C.  A.  347,  52  Fed.  Rep.  912,  that  when 
two  railroad  companies  owning  connecting  lines  of  road  unite 
in  a  joint  through  traffic  with  the  view  of  making  the  con- 
necting roads  a  new  and  independent  line,  the  through  tariff 
on  the  joint  line  is  not  a  standard  by  which  the  separate  tar- 
iff of  other  companies  is  to  be  measured  in  determining 
whether  the  fourth  section  was  violated.  In  the  Social  Cir- 
cle case,  162  U.  S.  184,  supra,  40  L.  Ed.  935,  a  Georgia  rail- 
way company  whose  road  lay  wholly  within  the  state  of 
Georgia  and  exacted  and  received  its  regular  local  rate  for 
the  transportation  on  its  line,  on  a  through  bill  of  lading,  the 
rate  of  which  was  fixed  by  adding  that  local  rate  to  the 
through  rate  from  Cincinnati  to  Atlanta,  was  held  subject 
as  to  the  through  bill  from  Cincinnati  to  Social  Circle  to  the 
Federal  Act  and  to  the  control  of  the  Interstate  Commerce 
Commission.  The  Court  distinguished  the  Osborne  case,  supra, 
upon  its  special  facts,  and  said  that  when  goods  shipped 
under  a  through  bill  of  lading  from  a  point  in  one  state  to  a 
point  in  another  are  received  in  transit  by  a  State  common 
carrier  on  a  conventional  division  of  the  charges,  such  carrier 
must  be  deemed  to  have  subjected  the  road  to  an  arrangement 
for  a  continuous  carriage  or  shipment  within  the  meaning  of 


264  INTERSTATE    COMMERCE    ACT.  [SECTION    1. 

the  Act  to  Regulate  Commerce.  Having  elected  to  enter  into 
the  carriage  of  interstate  freights  and  thus  subjected  itself  to 
the  control  of  the  Commission,  the  carrier  could  not  withdraw 
that  control  with  respect  to  foreign  traffic  to  certain  points  on 
its  road  and  exclude  other  points.  The  court  added:  "When 
we  speak  of  a  through  bill  of  lading,  we  are  referring  to  the 
usual  methods  in  use  by  connecting  companies,  and  must  not 
be  understood  to  imply  that  the  common  control,  management 
or  arrangement  miirhtnot  be  otherwise  manifested." 

§  *J*J4r.  The  proviso  of  the  section. —  It  is  obvious  that  since 
the  authoritative  ruling  of  the  Supreme  Court  as  to  the  right 
<>f  the  carrier  to  judge  for  itself  in  the  first  instance  of  the 
controlling  effect  of  competition  in  determining  rates,  the 
necessity  for  a  resort  to  the  discretionary  powers  of  the  Com- 
mission under  the  proviso  has  been  very  materially  changed. 
Such  applications  were  comparatively  numerous,  as  will  be 
seen  from  the  Interstate  Commerce  Reports  during  the  period 
when  a  different  rule  prevailed.  It  is  unnecessary  therefore 
to  refer  to  the  rulings  of  the  Commission  upon  the  specific  ap- 
plications for  such  relief  made  under  a  theory  of  the  law  after- 
wards/leclared  erroneous.  For  a  summary  of  the  Commission's 
rulings,  see  annual  report  of  1892,  pp.  IS  to  21;  1803,  p.  22; 
L894,  p.  IS;  1895,  p.  21. 

Petitions  for  relief  were  asked  on  other  grounds  than  that 
of  controlling  competition.  Thus  the  "World's  Fair  at  Chicago 
was  held  in  6  I.  C.  C.  R  323  and  6  I.  C.  C.  K.  32S,  to  be  a  case 
of  an  exceptional  and  special  nature  justifying  relief  from  the 
operation  of  the  section.  The  same  ruling  was  made  in  the 
case  of  an  application  on  account  of  crop  failure  and  the  neces- 
sity of  reduced  rates  for  the  transportation  of  food  for  the 
people  and  their  animals.  These  cases  however  were  excep- 
tional and  nearly  all  the  applications  for  relief  were  on  the 
ground  of  controlling  competition.  It  was  said  by  the  Com- 
mission in  its  reportof  1897  that  the  effect  of  the  decisions  of 
the  Supreme  Court  was  to  eliminate  the  fourth  section  from 
the  Act. 

§  225.  The  burden  of  proof. —  Although  this  judicial  con- 
struction of  the  term  "under  similar  circumstances  and  con- 
ditions'' has  had  a  very  profound  effect  upon  the  administra- 
tion of  the  Act,  it  is  not  strictly  correct  to  say  that  its  effect 


225.] 


INTERSTATE    COMMERCE    ACT.  265 


was  to  eliminate  the  fourth  section.  It  does  put  upon  the 
carrier  the  burden  of  proving  the  existence  of  dissimilar  cir- 
cumstances and  conditions  for  its  justification  when  the  fact 
of  the  greater  charge  for  the  shorter  haul  over  the  same  line 
appears°  In  other  cases  of  alleged  undue  preference  or  dis- 
crimination, the  burden  is  obviously  upon  the  party  complain- 
ing. For  illustrations  of  the  Commission's  application  of 
the  Supreme  Court's  construction  of  the  section  to  special  facts, 
see  7  L  C.  C.  K.  431,  454,  458;  S  I.  C.  C.  R.  93,  110,  290,  340, 
531;  9LC.C.R.  42,  534,  5S1. 


2GC  INTERSTATE    COMMERCE    ACT.  [SECTION    5. 


Section  5. 

Page 

§  226.     Pooling  of  freights  and  division  of  earnings  forbidden 266 

227.     Construction   of  section 266 

i     Controlling  through  routing  to  connections  by  initial  car- 
rier  267 

220.     Agreements  not  within  the  prohibition 268 

230.  The  relation  of  the  section  to  the  Anti-Trust  Law  of  1890 269 

231.  Pooling  as  a  defense  to  action  of  the  carrier 270 

|  '2'2(\.  Pooling  of  freights  and  division  of  earnings  for- 
bidden.—  Sec.  5.  That  it  shall  be  unlawful  for  any  common 
carrier  subject  to  the  provisions  of  this  act  to  enter  into  an}^ 
contract,  agreement,  or  combination  with  any  other  common 
carrier  or  carriers  for  the  pooling  of  freights  of  different  and 
competing  railroads,  or  to  divide  between  them  the  aggregate 
or  net  proceeds  of  the  earnings  of  such  railroads,  or  any  por- 
tion thereof;  and  in  any  case  of  an  agreement  for  the  pooling 
of  freights  as  aforesaid,  each  day  of  its  continuance  shall  be 
deemed  a  separate  offense. 

§  '2'2"i.  Construction  of  section. —  This  section  was  more 
thoroughly  discussed  in  Congress  and  in  the  public  press  before 
the  enactment  of  the  statute  than  any  other,  except  the  long 
and  short  haul  provision  of  section  4,  yet  in  view  of  its  import- 
ance and  it  declaration  of  public  policy,  it  has  received  com- 
paratively little  discussion  in  the  courts  or  before  the  Commis- 
sion. In  115  Fed  Rep.  5SS,  thus  section  was  construed  by  the 
court,  Hammond,  J.,  in  the  western  district  of  Tennessee,  in 
a  charge  to  the  grand  jury.  He  said  that  the  statute  contem- 
plated two  methods  of  pooling,  both  of  which  were  prohibited. 
First  a  physical  pooling,  which  means  a  distribution  by  the 
carriers  of  property  offered  for  transportation  on  different  and 
competing  railroads  in  the  proportions  and  on  the  percentages 
previously  agreed  upon;  and  secondly,  a  money  pooling, 
which  is  described  best  in  the  language  of  the  statute,  "  to 
divide  between  them  (different  and  competing  railroads)  the 
aggregate  or  net  proceeds  of  the  earnings  of  such  railroads, 
or  any  portion  thereof."  The  court  in  its  charge  adopted  the 
definition  of  the  wTord  "pool"  from  the  Centuiy  Dictionary, 
as: 

"It  is  a  combination  intended  by  concert  of  action  to  make 
or  control  changes  in  the  market  of  rates;  .  .  a  combina- 
tion  of   the   interests  of  several  otherwise  competing  parties, 


§  228.]  INTERSTATE    COMMERCE    ACT.  267 

such  as  rival  transportation  lines,  in  which  all  take  common 
grounds  as  regards  the  public,  and  distribute  the  profits  of 
the  business  among  themselves  equally  or  according  to  special 
agreement.  In  this  sense  pooling  is  <\  system  of  reconciling 
conflicting  interests  and  obviating  competition  by  which  the 
several  competing  parties  or  companies  throw  their  revenues 
into  one  common  fund,  which  is  then  divided  or  distributed 
among  the  members  of  the  pool  on  a  basis,  percentage  or  pro- 
portion previously  agreed  upon  or  determined  by  arbitration." 

The  agreement  of  the  Southern  Railway  and  Steamship 
Association  provided  for  a  division  of  territory  between  east- 
ern and  western  lines,  and  also  a  system  of  fines  and  penalties 
among  the  members  for  violation  of  the  association  rules. 
The  Commission  said  in  6  I.  C.  C.  R.  195,  that  these  fines  and 
penalties  are  available  as  substitutes  for  the  penalties  which 
would  be  exacted  under  a  regular  pooling  system,  and  that 
the  arrangement  was  tantamount  to  a  combination  forbidden 
by  the  section,  and  that  the  law  had  regard  to  the  substance 
rather  than  to  the  form,  and  that  whatever  it  prohibited  from 
being  done  directly  could  not  legally  be  done  indirectly. 

§  228.  Controlling  through  routing  to  connections  by  in- 
itial carrier. —  In  the  Southern  California  Fruit  case,  9  I.  C. 
C.  R.  182,  the  Commission  found  that  there  was  a  tonnage  pool 
of  traffic  as  between  the  connecting  carriers,  and  that  the 
through  routing  was  controlled  so  as  to  give  specific  percent- 
ages of  traffic  to  their  several  connections,  thereby  fulfilling 
and  giving  effect  to  this  unlawful  arrangement,  and  that  the 
suppression  of  the  practice  of  allowing  rebates  was  only  an 
incidental  result  of  and  was  not  the  primary  and  principal  ob- 
ject of  the  defendant  carriers  in  taking  over  to  themselves  the 
routing  be}rond  their  respective  roads,  but  that  the  object  was 
to  give  effect  to  this  tonnage  division.  Suit  was  brought  in 
the  southern  district  of  California  to  enforce  the  Commission's 
order  to  desist  from  this  practice.  Interstate  Commerce  Com- 
mission v.  Southern  Pacific  Company  et  al,  123  Fed.  Rep.  597. 
The  Court  held  that  the  order  was  prima  facie  valid  and  en- 
forcible,  and  the  demurrer  thereto  was  overruled. 

On  final  hearing  in  the  same  case  this  ruling  was  affirmed. 
132  Fed.  Rep.  829.  The  Court  said  that  the  word  "freights1' 
in  the  section  meant  the  commodities  carried,  and  not  the 
compensation  paid  for  the  carriage,  and  that  the  practice  of 
conditioning  the  through  rate  upon  the  reservation  to  the  in- 


20S  INTERSTATE    COMMERCE    ACT.  [SECTION    5. 

itial  carrier  of  the  absolute  power  to  route  the  shipments 
beyond  its  own  lines  for  the  declared  purpose  of  enabling  the 
initial  carrier  to  control  and  maintain  the  rate  so  fixed  by  pre- 
venting competition,  either  direct  or  indirect,  between  their 
connecting  carriers,  created  in  effect  a  traffic  pool  within  the 
meaning  of  section  5  of  the  Interstate  Commerce  Act.  Pool- 
ing and  rebates  were  both  within  the  prohibition  of  the  Act 
and  that  one  could  not  be  lawfully  employed  as  preventive  of 
the  other.  Jt  was  held  also  that  an  order  of  the  Commission 
requiring  the  railroads  joining  in  the  agreement  to  desist  from 
enforcing  the  rule  and  practice  was  not  legislative  in  charac- 
ter, because  the  rule  was  embodied  in  the  joint  through  tariff 
published  by  the  other  carriers,  where  it  is  also  promulgated 
to  the  public  and  enforced  against  all  shippers. 

§  229.  Agreements  not  within  the  prohibition. —  An 
agreement  for  the  division  of  through  freights  between  the 
members  of  a  trunk  line  is  not  within  the  prohibition  of  this 
section.  Neither  is  an  agreement  for  consultation  for  the  pro- 
motion of  reasonable  rates.  6  I.  C.  C.  E.  85.  In  this  case  the 
Commission  held  that  the  agreement  of  the  transcontinental 
association  was  not  within  the  prohibition  of  the  section,  as 
there  was  no  provision  for  the  actual  pooling  of  freights  or 
division  of  earnings  between  the  parties,  and  it  was  not  shown 
bv  the  agreement  itself  or  other  evidence  that  the  measures 
provided  therein  for  fixing  and  maintaining  rates  constituted 
a  contract,  agreement  or  combination  in  violation  of  section  5, 
or  that  those  measures  if  carried  out  in  good  faith  for  the  pur- 
pose named,  would  lead  indirectly  to  the  same  result  as  the 
actual  pooling  of  freights  and  division  of  earnings  prohibited 
by  the  Act. 

The  operation  and  conduct  of  the  Immigrant  Bureau  of  the 
W'istern  Passenger  Association,  whereunder  the  immigrant 
traffic  was  divided  between  the  carriers  in  the  agreed  propor- 
tion based  upon  the  proportion  of  the  domestic  passenger  traf- 
fic done  by  each  line,  was  not  within  the  prohibition  of  the 
section.  10  I.  C.  C.  E.  13.  The  Commission  said  that  the  sec- 
tion forbade  a  division  of  the  aggregate  or  net  proceeds  of  the 
earnings  of  such  competing  railroads,  whether  such  earnings 
arise  from  freight  or  passenger  business,  but  for  some  reason 
it  did  not  provide  specifically  against  a  division  of  passengers 


§  230.  INTERSTATE    COMMERCE    ACT.  269 

between  competing  roads.  The  amount  of  the  immigrant 
traffic  was  insignificant  compared  with  the  general  traffic  of 
the  railroads,  and  there  was  no  discriminations  against  indi- 
viduals, as  the  immigrants  were  forwarded  at  the  domestic 
published  rates  and  that  the  arrangements  had  eventually 
prompted  the  protection  and  greatly  improved  the  comfort  and 
treatment  of  immigrants.  The  Commission  declined  therefore 
to  take  an}'  action  in  the  premises. 

It  would  therefore  follow  that  the  prohibition  of  this  section 
must  be  limited  to  an  actual  pooling  of  freights  of  competing 
railroads  or  the  division  of  earnings,  and  would  not  include 
agreements  between  carriers  looking  to  the  convenient  and 
expeditious  handling  of  their  business  at  terminal  points  which 
are  not  for  revenue  and  therefore  not  subject  to  the  specific 
prohibition  of  this  section  or  of  the  Anti-Trust  Act.  See  infra, 
§  324. 

§  239,  The  relation  of  the  section  to  the  Anti-Trust  Law 
of  1800. —  The  prohibition  of  pooling  contained  in  this  section 
has  been  considered  in  connection  with  the  judicial  discussion 
of  the  prohibition  of  all  forms  of  combination  whether  of 
trusts  or  otherwise  in  restraint  of  interstate  commerce  con- 
tained in  the  Anti-Trust  Law  of  1890. 

This  section  prohibits  only  the  specific  form  of  combination 
which  comes  under  the  definition  of  pooling,  and  it  is  limited 
to  such  agreements  made  by  a  common  carrier  subject  to  the 
provisions  of  the  Act  "  with  any  other  common  carrier  or  car- 
riers." Thus  it  was  ruled  in  the  case  of  a  complaint  alleging 
an  agreement  for  the  pooling  of  freight  between  certain  rail- 
roads and  the  Standard  Oil  Company,  5  I.  C.  C.  R.  415,  4 
Int.  Com.  Rep.  162,  that  such  an  agreement  for  the  pooling  of 
traffic  between  a  carrier  by  rail  and  a  carrier  by  pipe  line  did 
not  fall  within  the  description  of  contracts  prohibited  by  sec- 
tion 5.  In  the  opinion  as  to  the  relation  of  express  companies 
to  the  act,  holding  that  they  were  not  included  therein  (see 
section  1,  supra),  the  Commission  said  that  the  prohibition  of 
section  5  did  not  include  express  companies,  who  were  there- 
fore at  liberty  to  pool  their  earnings.  1  I.  C.  C.  R.  349,  1  Int. 
Com.  Rep.  677. 

In  United  States  v.  Trans-Missouri  Freight  Association,  160 
U.  S.  290,  41  L.  Ed.  10u7,  it  was  urged  that  as  the  Commerce 


270  INTERSTATE    COMMERCE    ACT.  [SECTION    5. 

Act  related  solely  to  railroads  and  their  proper  regulation  and 
management,  the  act  of  1890  should  be  construed  as  applying 
to  all  contracts  of  the  nature  therein  described,  entered  into  by 
any  other  than  competing  common  carriers  by  railroads  for 
the  purpose  of  establishing  rates  of  traffic  and  transportation. 
But  the  Court  said  that  the  fifth  section  of  the  Interstate  Com- 
merce Act  prohibited  what  was  termed  "  pooling,"  because 
prior  to  the  passage  of  the  Act  railroad  companies  had  some- 
times endeavored  to  regulate  competition  and  maintain  rates 
by  pooling  arrangements,  and  in  the  Act  that  kind  of  arrange- 
ment was  forbidden,  and  while  the  Act  did  not  prohibit  such 
an  agreement  as  that  of  the  Trans-Missouri  Freight  Associa- 
tion, it  did  not  authorize  it,  and  both  statutes  stand,  as  neither 
was  inconsistent  with  the  other.  The  court  said  that  the  amend- 
ment of  the  Interstate  Commerce  Act  would  not  have  been  an 
appropriate  method  of  dealing  with  other  devices  to  suppress 
competition  for  the  reason  that  the  later  act  included  other 
parties  than  common  carriers.     (See  Act  of  1S90,  infra). 

§  231.  Pooling  as  a  defense  to  action  of  the  carrier. —  In 
D.  L.  &  W.  R.  Co.  v.  Frank  et  al,  110  Fed.  Rep.  689,  the  United 
States  Circuit  Court  for  the  western  district  of  New  York,  de- 
nied an  injunction  against  certain  ticket  brokers  as  to  special 
excursion  tickets  issued  for  the  Pan-American  Exposition  at 
Buffalo  on  the  ground  that  the  complainant  with  other  rail- 
roads had  made  an  unlawful  combination  for  the  fixing  of 
rates  and  pooling  earnings. 

A  contrary  ruling  however  has  been  made  in  the  United 
States  Circuit  Court  for  the  eastern  district  of  Missouri,  unre- 
ported, and  in  runner  v.  Lake  Shore  &  Michigan  So.  By  Co.,  69 
Ohio  St.  Rep.  339,  on  the  ground  that  the  alleged  unlawful 
combination  did  not  relate  to  the  specific  business  sought  to 
be  enjoined. 


INTERSTATE    COMMERCE    ACT.  271 


Section  6. 

Page 
§  232.-   Printing  and  posting  of  schedule  of  rates,  fares  anrl  charges 

etc 271 

233.  Amendments 273 

234.  Effect  of  publication 274 

23.5.     Enforcibility  of  unpublished  rate  against  the  carrier  275 

235.  What  is  included  in  schedules 277 

237.  What  is  sufficient  publication  and  filing 278 

238.  Joint  tariffs  and  through  rates 279 

239.  Published  joint  rates  must  be  duly  authorized 280 

240.  Application  to  export  and  import  rates  281 

§  232.  Printing  and  posting  of  schedules  of  rates,  fares 
and  charges,  etc. —  Sec.  6.  (As  amended  March  2, 1889).  That 
every  common  carrier  subject  to  the  provisions  of  this  act 
shall  print  and  keep  open  to  public  inspection  schedules  show- 
ing the  rates  and  fares  and  charges  for  the  transportation  of 
passengers  and  property  which  any  such  common  carrier  has 
established  and  which  are  in  force  at  the  time  upon  its  route. 
The  schedules  printed  as  aforesaid  by  any  such  common  car- 
rier shall  plainly  state  the  places  upon  its  railroad  between 
which  property  and  passengers  will  be  carried,  and  shall  con- 
tain the  classification  of  freight  in  force,  and  shall  also  state 
separately  the  terminal  charges  and  any  rules  or  regulations 
which  in  any  wise  change,  affect,  or  determine  any  part  or 
the  aggregate  of  such  aforesaid  rates  and  fares  and  charges. 
Such  schedules  shall  be  plainly  printed  in  large  type,  and  cop- 
ies for  the  use  of  the  public  shall  be  posted  in  two  public  and 
conspicuous  places,  in  every  depot,  station,  or  office  of  such 
carrier  where  passengers  or  freight,  respectively,  are  received 
for  transportation,  in  such  form  that  they  shall  be  accessible 
to  the  public  and  can  be  conveniently  inspected. 

Any  common  carrier  subject  to  the  provisions  of  this  act 
receiving  freight  in  the  United  States  to  be  carried  through 
a  foreign  country  to  any  place  in  the  United  States  shall  also 
in  like  manner  print  and  keep  open  to  the  public  inspection,  at 
every  depot  or  office  where  such  freight  is  received  for  ship- 
ment, schedules  showing  the  through  rates  established  and 
charged  by  such  common  carrier  to  all  points  in  the  United 
States  beyond  the  foreign  country  to  which  it  accepts  freight 
for  shipment;  and  any  freight  shipped  from  the  United 
States  through  a  foreign  country  into  the  United  States,  the 
through  rate  on  which  shall  not  have  been  made  public  as  re- 
quired by  this  act,  shall,  before  it  is  admitted  into  the'  United 
States  from  said  foreign  country,  be  subject  to  customs  duties 
as  if  said  freight  were  of  foreign  production;  and  any  law  in 
conflict  with  this  section  is  hereby  repealed. 


272  INTERSTATE    COMMERCE    ACT.  [SECTION    G. 

No  advance  shall  be  made  in  the  rates,  fares  and  charges 
which  have  been  established  and  published  as  aforesaid  by  any 
common  carrier  in  compliance  with  the  requirements  of  this 
section,  except  after  ten  days'  public  notice,  which  shall  plainly 
state  the  changes  proposed  to  be  made  in  the  schedule  then  in 
force,  ami  the  time  when  the  increased  rates,  fares,  or  charges 
will  go  into  effect;  and  the  proposed  changes  shall  be  shown 
by  printing  new  schedules  or  shall  be  plainly  indicated  upon 
the  schedules  in  force  at  the  time  and  kept  open  to  public 
inspection.  Reductions  in  such  published  rates,  fares  or  charges 
shall  only  be  made  after  three  days'  previous  public  notice,  to 
b.'  given  in  the  same  manner  that  notice  of  an  advance  in 
rates  must  be  given. 

And  when  any  such  common  carrier  shall  have  established 
and  published  its  rates,  fares,  and  charges  in  compliance  with 
the  provisions  of  this  section,  it  shall  be  unlawful  for  such  com- 
mon carrier  to  charge,  demand,  collect,  or  receive  from  any 
person  or  persons  a  greater  or  less  compensation  for  the  trans- 
portation of  passengers  or  property,  or  for  any  services  in  con- 
nection therewith,  than  is  specified  in  such  published  schedule 
of  rates,  fares,  and  charges  as  may  at  the  time  be  in  force. 

Every  common  carrier  subject  to  the  provisions  of  this  act 
shall  file  with  the  Commission  hereinafter  provided  for  copies 
of  its  schedules  of  rates,  fares,  and  charges  which  have  been 
established  and  published  in  compliance  with  the  requirements 
of  this  section,  and  shall  promptly  notify  said  Commission  of 
all  changes  made  in  the  same.  Every  such  common  carrier 
shall  also  file  with  said  Commission  copies  of  all  contracts, 
agreements,  or  arrangements  with  other  common  carriers  in 
relation  to  any  traffic  affected  by  the  provisions  of  this  act  to 
which  it  may  be  a  party.  And  in  cases  where  passengers  ami 
freight  pass  over  continuous  lines  or  routes  operated  by  more 
than  one  common  carrier,  and  the  several  common  carriers 
operating  such  lines  or  routes  establish  joint  tariffs  of  rates  or 
fares  or  charges  for  such  continuous  lines  or  routes,  copies  of 
such  joint  tariffs  shall  also,  in  like  manner,  be  filed  with  said 
commission.  Such  joint  rates,  fares,  and  charges  on  such  con- 
tinuous lines  so  filed  as  aforesaid  shall  be  made  public  by  such 
common  carriers  when  directed  by  said  Commission,  in  so  far 
as  may.  in  the  judgment  of  the  Commission,  be  deemed  prac- 
ticable; and  said  Commission  shall  from  time  to  time  prescribe 
the  measure  of  publicity  which  shall  be  given  to  such  rates, 
fares  and  charges,  or  to  such  part  of  them  as  it  may  deem  it 
practicable  for  such  common  carriers  to  publish,  and  the  places 
in  which  they  shall  be  published. 

No  advance  shall  be  made  in  joint  rates,  fares,  and  charges, 
shown  upon  joint  tariffs,  except  after  ten  days'  notice  to  the 
Commission,  which  shall  plainly  state  the  changes  proposed  to 
be  made  in  the  schedule  then  in  force,  and  the  time  when  the 


§  233.]  INTERSTATE    COMMERCE    ACT.  273 

increased  rates,  fares,  or  charges  will  go  into  effect.  No  re- 
duction shall  be  made  in  joint  rates,  fares,  and  charges,  except 
after  three  days'  notice,  to  be  given  to  the  Commission  as  is 
above  provided  in  the  case  of  an  advance  of  joint  rates.  The 
Commission  may  make  public  such  proposed  advances,  or' such 
reductions,  in  such  manner  as  may,  in  its  judgment,  be  deemed 
practicable,  and  may  prescribe  from  time  to  time  the  measure 
of  publicity  which  common  carriers  shall  give  to  advances  or 
reductions  in  joint  tariffs. 

It  shall  be  unlawful  for  any  common  carrier,  party  to  any 
joint  tariff,  to  charge,  demand,  collect,  or  receive  from  any 
person  or  persons  a  greater  or  less  compensation  for  the  trans- 
portation of  persons  or  property,  or  for  any  services  in  connec- 
tion therewith,  between  any  points  as  to  which  a  joint  rate, 
fare,  or  charge  is  named  thereon  than  is  specified  in  the  sche- 
cule  filed  with  the  Commission  in  force  at  the  time. 

The  Commission  may  determine  and  prescribe  the  form  in 
which  the  schedules  required  by  this  section  to  be  kept  open 
to  public  inspection  shall  be  prepared  and  arranged,  and  may 
change  the  form  from  time  to  time  as  shall  be  found  expedient. 

If  any  such  common  carrier  shall  neglect  or  refuse  to  file  of 
publisl/its  schedules  or  tariffs  of  rates,  fares,  and  charges  as 
provided  in  this  section,  or  any  part  of  the  same,  such  common 
carrier  shall,  in  addition  to  other  penalties  herein  prescribed, 
be  subject  to  a  writ  mandamus,  to  be  issued  by  any  Circuit 
Court  of  the  United  States  in  the  judicial  district  wherein  the 
principle  office  of  said  common  carrier  is  situated,  or  wherein 
such  offense  may  be  committed,  and  if  such  common  carrier 
be  a  foreign  corporation  in  the  judicial  circuit  wherein  such 
common  carrier  accepts  traffic  and  has  an  agent  to  perform  such 
service,  to  compel  compliance  with  the  aforesaid  provisions  or 
this  section;  and  such  writ  shall  issue  in  the  name  of  the  people 
of  the  United  States,  at  the  relation  of  the  Commissioners  ap- 
pointed under  the  provisions  of  this  act;  and  the  failure  to  comply 
with  its  requirements  shall  be  punishable  as  and  for  a  contempt; 
and  the  said  Commissioners,  as  complainants,  may  also  apply, 
in  any  such  Circuit  Court  of  the  United  states,  for  a  writ  of  in- 
junction against  such  common  carrier,  to  restrain  such  com- 
mon carrier  from  receiving  or  transporting  property  among 
the  several  states  and  territories  of  the  United  States,  or  be- 
tween the  United  States  and  adjacent  foreign  countries,  or  be- 
tween ports  of  transshipment  and  of  entry  and  the  several 
states  and  territories  of  the  United  States,  as  mentioned  in  the 
first  section  of  this  act  until  such  common  carrier  shall  have 
complied  with  the  aforesaid  provisions  of  this  section  of  this 
act.. 

§  233.  Amendments. —  This  section  was  amended  by  act  of 
March  2nd,  1889,  in  the  first  series  of  amendments  made  to 
the  Act.     The  amendment  provided  in  the  first  paragraph  for 
18  ' 


274  INTERSTATE    COMMERCE    ACT.  [SECTION   6. 

the  printing  of  the  schedule  in  two  public  and  conspicuous 
places,  prohibited  reduction  of  rates  without  three  days  notice, 
and  made  a  more  specific  provision  as  to  the  power  of  the  Com- 
mission in  prescribing  forms  of  schedules,  rates,  fares  and 
charges. 

This  section  was  also  amended  by  the  so-called  Elkins  law 
of  February  19,  1903,  infra,  §  310,  in  the  requirement  of  the 
publication  and  the  invariable  application  of  the  tariff  rates, 
and  the  wilful  failure  of  the  carrier  to  file  and  publish  the 
rates  or  to  strictly  observe  them  until  changed  according  to 
law  was  made  a  misdemeanor  punishable  by  heavy  fine.  The 
rates  filed  or  participated  in  by  the  carrier  are  also  declared, 
as  against  the  carrier,  to  be  the  legal  rate,  and  any  departure 
or  offer  to  depart  from  the  same  is  made  an  offense.  The  Com- 
mission in  its  report  for  1901,  page  10,  recommends  that  these 
provisions  as  to  application  and  observance  should  be  made 
somewhat  more  definite  and  extended  to  apply  to  other  agen- 
cies connected  with  transportation,  such  as  the  use  of  private 
cars,  which  may  now  be  used  as  a  means  of  making  conces- 
sions to  shippers.    . 

vj  '23±.  Effect  of  publication. —  In  Gulf,  Colorado  &  Santa 
Fe  Eailroad  Co.  v.  Iieiley,  15S  IT.  S.  98,  39  L.  Ed.  910,  the 
Supreme  Court  decided  that  all  railroads  carrying  interstate 
freight  were  subject  to  the  provisions  of  the  act  to  regulate 
commerce,  and  that  the  only  rule  of  compensation  which  can 
be  followed  in  regard  to  interstate  shipments  is  the  rate  ex- 
pressed in  tariffs  published  at  stations  and  filed  with  the  Com- 
mission in  accordance  with  the  requirements  of  the  Act.  In 
this  case  there  was  conflict  between  the  Texas  law  containing 
a  provision  for  recovery  of  a  penalty  in  the  case  of  a  violation, 
while  the  Federal  Statute  prohibits  carriers  from  devitating 
from  tariff  rates  published  and  on  file,  and  providing  penalties 
for  any  departure  therefrom.  The  Court  held  that  these  two 
statutes  prescribing  a  different  rule  on  the  subject-matter,  ex- 
posed a  party  to  a  conflict  of  duties,  and  that  in  the  case  of  an 
interstate  shipment,  the  State  law  must  yield. 

As  to  the  effect  of  the  published  rates  upon  the  standard  of 
reasonableness  in  an  action  at  law  for  alleged  unreasonable 
charges,  see  supra,  section  1. 

Contracts  and  tariffs  filed  with  the  Commission   under  this 


§  235.]  INTERSTATE    COMMERCE    ACT.  275 

section  may  be  considered  in  any  proceeding  before  the  Com- 
mission, although  not  specifically  introduced  in  evidence  on 
the  hearing.  4  I.  C.  C.  R.  664,  3  Int.  Com.  Rep.  493.  The 
reduction  of  passenger  rates  without  consent  of  connecting 
lines,  over  which  tickets  are  sold,  and  without  filing  schedules 
with  the  Commission  was  held  in  violation  of  this  section.  2 
I.  C.  C.  R.  513,  2  Int.  Com.  Rep.  340. 

The  filing  of  schedules  of  rates  with  the  Commission  as 
required  by  statute  raises  no  presumption  as  to  the  legality  of 
such  rates,  and  no  omission  or  failure  to  challenge  or  disap- 
prove the  schedules  of  rates  so  filed  can  have  the  effect  of  mak- 
ing rates  lawful  which  are  unreasonable.  4  I.  C.  C.  It.  104, 
3  Int.  Com.  Rep.  138. 

When  a  schedule  is  filed  announcing  an  advance  of  general 
application,  for  which  no  apparent  reason  exists,  such  action 
is  a  proper  subject  of  investigation,  and  if  it  thereupon  appears 
that  the  advance  is  unwarranted,  the  Commission  will  proceed 
to  correct  the  injustice.  9  I.  C.  C.  R.  3S2.  It  is  the  duty  of 
the  carrier  to  apply  the  rate  as  published,  and  where  it  ap- 
pears in  the  complaint  before  the  Commission  that  a  contract 
was  made  for  a  lower  charge  than  published,  the  contract  is 
not  binding  and  its  violation  furnishes  no  ground  for  redress 
under  the  Act.  See  9  I.  C.  C.  R.  216.  The  Commission  said  that 
that  question  had  been  decided  by  the  Supreme  Court  in  the 
Ilelfley  case,  supra.  See  amendatory  act  of  February  19, 
1903,  infra,  §  48,  making  the  failure  to  publish  the  tariff, 
or  to  strictly  observe  the  tariff,  until  changed,  a  misdemeanor, 
and  also  declaring  the  published  rate  conclusively  deemed  to 
be  the  legal  rate. 

It  was  held  in  United  States  v.  De  Course}T,  82  Fed.  Rep.  302, 
that  a  receiver  is  not  criminally  liable  under  this  section  for 
violation  of  a  joint  tariff  previously  established  by  a  railroad 
company  of  which  he  is  receiver  and  another  company  which 
he  has  not  ratified,  adopted  or  recognized  in  any  way. 

§  235.  Enforcibility  of  unpublished  rate  against  the 
carrier. —  This  section  provides  that  it  shall  be  unlawful  for 
the  carrier  to  deviate  from  the  published  rates,  and  the  recent 
amendment  of  1903  declared  that  the  published  rate  should  be 
conclusiveljr  deemed  to  be  the  legal  rate.  It  was  held  by  the 
Circuit  Court  of  Appeals  for  the  fifth  circuit  in  Pondecker 


2  70  INTERSTATE    COMMERCE    ACT.  [SECTION    6. 

Lumber  Co.  v.  Spencer,  30  C.  C.  A.  430,  86  Fed.  Rep.  846 
(decided  in  1898 ), reversing  81  Fed.  Rep.  277,  that  where  the 
agent  of  a  connecting  carrier  by  mistake  has  given  a  shipper 
an  unusually  low  rate  on  a  shipment  of  a  special  and  unusual 
character,  and  the  initial  carrier  without  knowledge  of  such 
rate  breaks  its  contract  of  carriage  by  sending  the  goods  over 
a  different  road  from  that  prescribed  in  the  bill  of  lading,  so 
that  the  shipper  is  compelled  to  pay  a  much  higher  rate  of 
freight,  the  initial  carrier  cannot  escape  liability  for  the  dam- 
ages on  the  ground  that  the  rate  given  was  in  violation  of  the 
Interstate  Commerce  Act.  The  court  said  in  its  opinion  that 
the  Interstate  Commerce  Act  nowhere  intimates  by  any  ex- 
press language  that  contracts  made  by  carriers  within  the 
scope  of  their  general  powers  are  to  be  declared  null  and  void 
in  any  collateral  proceeding  which  may  arise,  by  reason  of 
some  alleged  or  supposed  departure  from  the  requirements  of 
that  Act  with  reference  to  fares  and  charges.  It  was  not  ex- 
pected that  each  shipper  should  be  an  expert  rate  sheet  reader, 
or  that  he  should  have  to  visit  the  local  offices  of  each  of  the 
connecting  lines  to  inspect  the  rate  sheets  that  were  to  be 
posted  at  certain  points  according  to  the  requirements  of  the 
Interstate  Commerce  Act,  in  order  to  advise  himself  as  to  what 
are  the  local  rates  on  the  connecting  carriers  between  the 
points  at  which  the  connecting  carriers  connected,  nor  was  it 
required  of  him  before  mailing  a  contract  that  he  should  make 
inquiry  at  the  offices  of  the  Commission  in  Washington  city  to 
learn  if  a  through  joint  rate  over  the  route  his  goods  were  to 
be  carried  were  on  file  there  and  if  so,  its  terms.  The 
Court  said  that  any  such  rule  would  put  on  shippers  a  burden 
t  oo  grievous  to  be  borne  and  opened  the  doors  for  the  practice 
of  fraud  and  oppression  by  the  agents  of  corporation  carriers. 
also  opinion  of  Commission  in  6  I.  C.  C.  R.  685,  and  as  to 
the  general  rule,  see  Mobile  &  Ohio  R.  Co.  v.  Dismukes,  91 
Ala.  131,  17  L.  R.  A.  113;  Tracy  v.  Talmadge,  14  K  Y.  102. 
But  see  contra,  Gerber  v.  Wabash  Ry.  Co.,  63  Mo.  App.  145. 
In  Laurel  Cotton  Mills  v.  Gulf  &  S.  I.  R.  Co.,  37  So.  Rep.  134, 
the  Supreme  Court  of  Mississippi  held  that  it  was  not  nec- 
essary  in  a  suit  to  recover  a  rebate  under  a  contract  of  carri- 
age, to  show  that  the  rates  had  been  filed  with  a  National  or 
State  Commission,  and  that  the  law  would  not  presume  illegal 


§  236.]  INTERSTATE    COMMERCE    ACT.  277 

conduct,  and  although  the  contract  might  be  unreasonable  be- 
cause of  an  unauthorized  deviation  from  established  rates,  yet 
this  was  a  question  of  fact,  and  the  petition  was  therefore  held 
good  on  demurrer. 

§  236.  What  is  included  in  schedules. — The  section  pro- 
vides for  the  publication  not  only  of  the  charges  for  carriage, 
but  for  a  separate  statement  of  terminal  charges,  and  it  is  made 
unlawful  for  the  carrier  to  charge  a  greater  or  less  compensa- 
tion for  the  transportation  of  passengers  or  property,  or  for 
any  services  in  connection  therewith.  In  the  Grand  Haven  Cart- 
age case,  supra,  the  Supreme  Court  said,  quoting  the  opinion 
of  the  Commission,  that  cartage  was  not  in  general  a  terminal 
expense  and  was  not  in  general  assumed  by  the  carrier.  It 
said  further  that  as  it  was  informed  from  an  extract  from  the 
report  of  the  Commission  for  1SS9  that  there  were  many  rail- 
road companies  throughout  the  country  which  furnished  cart- 
age at  their  stations,  but  that  in  no  instance  had  the  rate 
sheets  or  schedules  contained  anything  to  that  effect.  The 
court  suggested  in  a  matter  of  that  kind,  that  much  should  be 
left  to  the  judgment  of  the  Commission,  and  intimated  that  it 
would  be  proper  for  the  Commission  to  include  cartage  when 
furnished  as  one  of  the  terminal  charges,  and  include  it  as 
such  in  their  published  schedules.  The  Commission  acted  upon 
this  suggestion,  see  7  I.  C.  C.  R.  592,  S  I.  C.  C.  R .  560,  and 
made  a  general  order  February  8,  1S9S,  directing  that  all  car- 
riers subject  to  the  Act  should  plainly  indicate  upon  the  sched- 
ules published  and  filed  with  the  Commission  under  the  provi- 
sions of  the  sixth  section  .  .  .  what  storage  room  in  stations, 
warehouses  or  cars  will  be  permitted,  stating  the  length  of 
time  and  character  of  the  storage,  the  service  rendered  in  con- 
nection therewith,  and  all  the  terms  and  conditions  upon 
which  the  same  will  be  granted.  As  to  the  forms  and  con- 
tents of  rate  schedules  and  the  authority  for  making  joint  tar- 
iffs and  the  published  rules  of  the  Commission,  see  6  I.  C.  C.  R. 
267,  4  Int.  Com.  Rep.  698.  Storage  rates  and  regulations 
must  therefore  be  published  at  the  stations,  and  filed  with 
the  Commission.  10  I.  C.  C.  R.  352. 

In  7  I.  C.  C.  R.  559,  the  Commission  said  the  object  of  the 
sixth  section  is  to  secure  to  the  public  an  opportunity  of  know- 
ing the  rates  charged  by  the  carriers  for  the  service  rendered; 


278  INTERSTATE    COMMERCE    ACT.  [SECTION    6. 

but  it  is  of  no  possible  avail  to  state  the  amount  of  the  rate,  un- 
less the  thing  or  things  covered  by  that  rate  is  also  known. 
Whenever  any  service  is  rendered  or  any  privilege  allowed  be- 
yond the  ordinary  receiving,  transporting  and  delivering  the 
thing,  any  service  often  performed,  as  in  the  moving  of  pri- 
vate cars,  should  be  open  to  the  public  and  made  known  by 
the  proper  announcement.  9  I.  C.  C.  R.  1.  In  this  case  the  com- 
on  said  that  the  carrier  should  exclude  from  its  road  all 
private  cars,  or  else  prescribe  in  its  tariffs  the  rules  and  rates 
under  which  they  would  be  transported. 

Any  rules  or  regulations  which  in  any  wise  change,  effect 
or  determine  any  part  of  the  aggregate  of  the  carrier's  rates, 
fares  or  charges  must  be  shown  separately  upon  the  carrier's 
posted  schedules  or  charges,  and  any  such  rule  promulgated  by 
the  carrier  in  circulars  independent  of  its  published  rates  or 
schedules  is  unlawful.  7  I.  C.  C.  K.  255.  This  principle  was  ap- 
plied in  the  case  of  circulars  issued  by  a  railroad  company  pre- 
scribing maximum  and  minimum  carload  rates  for  grain.  The 
Commission  said  that  the  shipper  had  only  to  consult  the  sched- 
ule showing  defendant's  rates  and  charges,  and  that  he  was 
entitled  to  recover  charges  collected  on  a  shipment  in  excess 
of  those  set  forth  in  the  schedule. 

It  was  held  by  United  States  Circuit  Court  of  Appeals  for 
the  seventh  circuit,  in  Walker  v.  Keenan,  19  C.  C.  A.  668,. 
73  Fed.  Rep.  755,  reversing  64  Fed.  Eep.  992,  that  a  railroad 
company  could  by  posting  schedules  make  a  charge  for  freight 
over  its  own  line,  and  a  separate  terminal  charge  of  a  fixed 
sum  per  car  for  delivery  at  the  stockyards,  which  were  located 
off  its  own  lines,  and  to  cover  the  cost  of  transportation  to  such 
stockyards  over  the  line  belonging  to  the  stockyards  company. 

§  237.  What  is  sufficient  publication  and  filing.— Sched- 
ules of  joint  tariffs  required  to  be  filed  with  the  Commission 
need  not  be  duplicated  by  each  company  which  unite  in  mak- 
ing them.  1  I.  C.  C.  R.  225,  1  Int.  Com.  Rep.  598.  The 
receipt  of  a  written  statement  from  each  company  acknowl- 
edging the  authority  for  filing  the  tariff  on  its  behalf  is  suf- 
ficient. The  posting  of  notices  in  a  railroad  station,  that  all 
rates  are  on  file  in  the  office  of  the  station  agent  and  may  be 
examined  on  application  to  the  agent,  is  not  sufficient.  7  I.  C. 
(  .  li.  43.     9  1.  C.  C.  R.  221. 


§  238.]  INTERSTATE    COMMERCE    ACT.  279 

Shippers  and  consignees  cannot  depend  for  the  lawful  rate 
and  charge  upon  statements,  as  they  must  be  guided  by  the 
published  rates  themselves,  and  the  schedules  must  therefore 
be  sufficient  to  give  the  necessary  information.  7  I.  C.  C.  R. 
225. 

The  only  satisfactory  method  of  publishing  rates,  6  I.  C.  C. 
R.  4SS,  is  to  definitely  state  the  charges  fixed  between  points 
clearly  specified,  without  burdening  and  confusing  the  public 
with  the  need  of  making  of  involved  calculations  or  with  an- 
alyzing a  series  of  statements  to  determine  whether  a  particular 
rate  has  been  changed  since  the  particular  tariff  was  issued. 
Thus  published  tariffs  specifying  rates  upon  standard  articles, 
as  vegetables  shipped  from  Florida,  should  state  plainly  the 
weight  or  dimensions  of  the  crate  to  which  the  rate  should 
apply.     8  I.  C.  C.  R.  5S5. 

Rules  or  regulations  which,  if  enforced,  would  result  in 
changing  or  affecting  rates  or  charges  shown  on  published 
schedules,  must  be  notified  to  the  public  for  the  time  required 
by  law  for  other  rate  changes.  The  notice  should  set  forth 
the  changes  proposed  to  be  made  in  the  schedules  then  in  ef- 
fect, and  such  changes  must  be  shown  b}r  printing  new  sched- 
ules or  be  plainly  indicated  upon  the  schedules  in  force  at 
the  time.  7  I.  C.  C.  R.  255.  As  to  publication  and  filing  of 
rate  schedules,  see  annual  report  of  Commission  of  1904, 
p.  64. 

§  238.  Joint  tariffs  and  through  rates. —  As  to  both 
classes  of  rates,  that  is,  whether  over  the  line  of  a  single  car- 
rier or  over  a  continuous  line  operated  by  more  than  one  car- 
rier, the  provision  is  uniform  that  established  rates  should  not 
be  increased  except  after  ten  clays  notice,  or  reduced  after 
three  days  notice,  and  as  to  these  two  classes  of  rates  the  pro- 
visions of  the  law  differ  in  no  respect  except  one,  and  that  is 
that  the  Commission  may  prescribe  a  measure  of  publicity 
which  the  carrier  should  be  required  to  give  of  their  rates  and 
fares  on  such  continuous  route,  while  'on  the  other  class  the 
requirements  are  specified  in  the  law  itself.  Such  exception 
does  not  go  to  the  form,  substance  or  application  of  the  rates 
in  any  degree  whatsoever;  and  the  Commission  has  by  order 
of  March  23,  18S9,  prescribed  that  carriers  by  such  continuous 
lines  or  rates  should  publish  their  joint  rates  as  separate  and 


280  INTERSTATE    COMMERCE    ACT.  [SECTION    6. 

individual  roads  are  required  bv  law  to  do.    See  9  I.  C.  C.  E. 
182. 

AVhere  freight  passes  over  a  continuous  line  or  route  oper- 
ated by  more  than  one  company,  on  which  no  joint  tariff  of 
rates  or  charges  have  been  established,  the  tariff  of  rates  or 
charges  is  the  same  as  the  established  local  rates  or  charges  by 
the  several  companies  operating  such  continuous  line.  5  I.  C. 
C.  E.  44,  3  Int.  Com.  Eep.  706. 

When  the  rates  established  applying  between  the  points  with- 
in a  single  state  are  applied  as  part  of  combination  rates  in  trans- 
portation between  different  states,  such  state  rates,  as  well  as 
the  interstate  rates  with  which  they  are  combined,  must  be 
published  and  filed  as  provided  by  section  6.  See  also  as  to 
application  of  the  section,  8  I.  C.  C.  E.  316. 

So  passenger  excursion  rates  are  required  to  be  published 
and  filed.    3  I.  C.  C.  E.  4(!5,  2  Int.  Com.  Eep.  720. 

§  239.  Published  joint  rates  must  be  duly  authorized. — 
The  only  rates,  which  a  carrier  is  authorized  to  publish,  are  its 
own  local  rates,  that  is,  to  points  on  its  own  line,  and  such- 
through  rates,  as  it  is  authorized  by  agreement  with  any  con- 
necting carrier  to  combine  with  the  rates  of  such  carrier  to 
points  on  its  line.  It  cannot  lawfully  add  to  the  duly  estab- 
lished rates  of  another  carrier  any  amount  it  pleases  less  than 
its  own  local  rates,  and  publish  and  use  them  the  same  as  a 
through  rate  to  points  on  the  line  of  another  carrier  without 
its  consent.  Such  a  through  rate  is  not  a  joint  rate,  for  joint 
rates  can  be  made  only  by  concurrence  or  assent,  nor  is  it  a 
combination  rate,  for  one. of  its  component  parts  has  no  legal 
existence  or  sanction  as  a  through  rate  or  through  charge. 
There  must  be  lawful  rates  upon  each  of  the  roads  before  there 
can  be  a  lawful  combination  of  rates.  This  was  ruled  in  a 
case,  7  I.  C.  C.  E.  323,  where  the  receivers  of  a  road  connect- 
in"-  with  the  New  York,  Xew  Haven  &  Hartford  railroad, 
published  what  purported  to  be  a  joint  tariff  of  coal  rates  from 
from  the  point  on  its  road  to  a  number  of  destinations  reached 
by  the  New  York  6c  Xew  Haven  road,  whereby  the  com- 
plainant company  received  its  full  local  charges  to  said  desti- 
nations from  the  junction  points  with  defendant's  road,  and 
the  defendant  accepted  the  remainder,  which  was  in  each  in- 
stance less  than  the  established   local  rate   from   the  place  of 


§  240.]  INTERSTATE    COMMERCE    ACT.  281 

shipment  to  the  point  of  connection.  The  New  York  &  New 
Haven  road  which  carried  coal  to  the  same  destinations  by  a 
longer  route  over  its  own  rails  thereby  securing  greater  com- 
pensation than  was  afforded  to  it  by  coal  coming  to  it  from 
defendant's  road,  refused  to  unite  in  these  rates  published  by 
trie  connecting  carriers  so  unauthorized  and  its  complaint  was 
sustained.  Commissioner  Clements  dissented,  holding  that  a 
carrier  could  make  and  publish  through  rates  to  points  on  a 
connecting  line  less  than  its  regular  locals,  provided  the  rates 
on  its  own  line  were  duly  filed  and  published  and  are  them- 
selves just  and  reasonable  and  are  not  in  themselves  unjustly 
discriminative  against  local  shippers. 

§  240.  Application  to  export  and  import  rates.— The 
most  serious  question  in  the  practical  enforcement  of  section  6 
has  been  in  relation  to  export  and  import  rates;  that  is,  upon 
through  rates,  including  an  inland  rate  subject  to  the  jurisdic- 
tion of  the  Commission,  and  the  ocean  rate  to  a  foreign  port 
not  subject  to  such  jurisdiction.  The  practical  difficulty  arose 
from  the  fact  that  the  ocean  rates  from  the  ports  are  not 
under  the  control  of  the  Commission  and  are  constantly  vary- 
ing. 

In  the  language  of  the  Commission  in  a  recent  decision,  10 
I.  C.  C.  R.  55,  the  rate  varies  from  day  to  day  and  sometimes 

from  hour  to  hour.     The  same  kind  of  merchandise  mav  be 

■< 

carried  in  the  same  vessel,  often  for  the  same  person,  at  dif- 
ferent charges  for  the  transportation. 

The  Commission  had  held  in  several  cases  that  the  export 
and  import  rates  should  be  published.  3  I.  C.  C.  R.  137,  2 
Int.  Com.  Eep.  553;  4  I.  C.  C.  R.  694,  3  Int.  Com.  Rep.  523. 

Previous  to  the  decision  of  the  Import  Rate  case,  supra,  162 
IT.  S.  197,  the  Commission  required  the  publication  of  the  in- 
land portion  received  by  the  rail  carrier.  Since  then  it  has 
held  that  where  a  through  rate  was  named  and  a  through  bill 
of  lading  was  issued,  the  inland  carrier  might  publish  either 
its  total  or  through  rate,  or  its  inland-  portion  which  it  re- 
ceived. 8  I.  C.  C.  R.  110,  8  I.  C.  C.  R.  214.  In  other  words, 
the  Commission  rules  that  the  rate  for  the  inland  carrier  on  an 
export  shipment  from  a  point  in  the  interior  must  either  be  a 
joint  rate  to  a  foreign  destination,  or  a  local  rate  to  the  point 
of  export,  and  that  in  either  event  the  law  requires  the  carrier 


2S2  INTERSTATE    COMMERCE    ACT.  [SECTION    G. 

to  publish  the  rate,  leaving-  him  to  determine  whether  its  rate 
is  a  joint  or  an  inland  rate,  and  to  publish  either  as  it  may 
elect.  The  Commission  concluded  its  recent  exhaustive 
investigation  upon  this  subject,  (10  I.  C.  C.  R.  55);  by 
holding,  first,  that  the  act  now  requires  the  publication  of  the 
export  and  import  tariffs  in  the  same  manner  as  the  domestic 
tariffs,  and  under  the  Elkin's  Act  of  February  19,  1003,  the  en- 
forcement  of  the  pi  b  ication  is  made  mandatory  upon  the 
Commission.  Second,  that  public  policy  urgently  required 
that  the  inland  transportation  of  export  and  import  commerce 
should  be  subject  to  the  act,  and  that  the  publishing  and  main- 
taining of  tariffs  in  most  instances  would  impose  no  hardships 
upon  the  carrier,  but  that  where  it  did,  the  only  remedy  was 
by  amendment  to  the  act,  as  the  Commission  had  no  power  to 
modify  the  requirements  of  the  act.  And  third,  that  the  carriers 
should  in  all  cases  file  with  the  Commission  the  rates  actually 
made,  and  should  give  thereafter  notice  to  the  public  of  varia- 
tions in  the  rate  as  far  as  possible.  The  Commission  intimated 
that  the  proper  remedy  was  to  apply  to  Congress  for  an  amend- 
ment of  the  act  in  regard  to  the  publication  of  through  export 
and  import  rates,  and  that  if  the  act  was  not  amended  within 
a  reasonable  time,  it  would  be  their  duty  to  enforce  it. 

See  also  discussion  of  this  subject  in  the  report  of  the  Com- 
mission for  1904,  page  49. 


§§  211,  242.]  interstate  commeece  act.  283 

Section  7. 

§  241.     Continuous  carriage  of  freights  from  place  of  shipment  to  place 
of  destination. 
242.     Judicial  application  of  section. 

§  241.  Continuous  carriage  of  freights  from  place  of 
shipment  to  place  of  destination. —  Sec.  7.  That  it  shall  be 
unlawful  for  any  common  carrier  subject  to  the  provisions  of 
this  act  to  enter  into  any  combination,  contract  or  agreement, 
expressed  or  implied,  to  prevent,  by  change  of  time  schedule, 
carriage  in  different  cars,  or  by  other  means  or  devices,  the 
carriage  of  freights  from  being  continuous  from  the  place  of 
shipment  to  the  place  of  destination ;  and  no  break  of  bulk, 
stoppage,  or  interruption  made  by  such  common  carrier  shall 
prevent  the  carriage  of  freights  from  being  and  being  treated 
as  one  continuous  carriage  from  the  place  of  shipment  to  the 
place  of  destination,  unless  such  break,  stoppage,  or  interrup- 
tion was  made  in  good  faith  for  some  necessary  purpose,  and 
without  any  intent  to  avoid  or  unnecessarily  interrupt  such 
continuous  carriage  or  to  evade  any  of  the  provisions  of  this  act. 

§  242.  Judicial  application  of  section. —  This  section,  pro- 
hibiting any  combination  for  preventing  the  continuity  of 
traffic  and  providing  for  the  continuous  carriage  of  freights 
from  the  place  of  shipment  to  the  place  of  destination,  is  to  be 
considered  in  connection  with  the  provision  of  section  3  con- 
cerning the  interchange  of  traffic,  {supra,  %  211),  which  has  been 
construed  as  leaving  the  carriers  free  to  make  arangements 
for  through  traffic  among  themselves,  there  being  no  power 
in  the  Commission  or  courts  to  compel  one  railroad  company 
to  deliver  cars  to  another.  It  was  said  by  the  Commission  in 
a  recent  case,  10  I.  C.  C.  R.  188,  that  in  view  of  this  construc- 
tion of  section  3  of  the  act,  it  was  not  clear  what  the  seventh 
section  was  intended  to  accomplish,  and  that  possibly  Congress 
had  in  mind  that  railways  might  attempt  to  interrupt  traffic 
at  state  lines,  thereby  depriving  the  traffic  of  the  character  of 
interstate  business,  and  that  the  seventh  section  may  have 
been  intended  to  prevent  this.  The  -  Commission  was  clear 
that  it  added  nothing  to  the  third  section  in  support  of  the 
claim  made  requiring  the  defendant  carrier  to  deliver  its  cars 
to  another  carrier. 

This  section  has  also  been  cited  in  the  cases  wherein  the 
courts  have  been  asked  to  protect  interstate  carriers  against 
interference  by  unlawful  combinations.    See  chapter  IY,  suj?ra. 


2S4  INTERSTATE    COMMERCE    ACT.  [SECTION    8. 


Section  8. 

Page. 

§  243.     Liability  of  common  carrier  for  damages 284 

241.     Action  based  on  the  statute 284 

24").     Plaintiff  must  show  injury   285 

2 4ii.     Limitation  of  actions 285 

247.     Assignability  of  claims 286 

2  18.     The  jurisdiction  of  Federal  courts 2S6 

249.     Jurisdiction  of  the  Federal  courts  in  equity  under  the  act  287 

350,  Jurisdiction  in  equity  for  protection  of  interstate  commerce.    .290 

§  0+:}.  Liability  of  commerce  carriers  for  damages. —  Sec. 
S.  That  in  case  any  common  carrier  subject  to  the  provisions 
of  this  act  shall  do,  cause  to  be  done,  or  permit  to  be  done 
any  act,  matter,  or  thing  in  this  act  prohibited  or  declared 
to  "be  unlawful,  or  shall  omit  to  do  any  act,  matter,  or  thing  in 
this  act  required  to  be  done,  such  common  carrier  shall  be 
liable  to  the  person  or  persons  injured  thereby  for  the  full 
amount  of  damages  sustained  in  consequence  of  any  such  vio- 
lation of  the  provisions  of  this  act,  together  with  the  reason- 
able counsel  or  attorney's  fee,  to  be  fixed  by  the  court  in  every 
case  of  recovery,  which  attorney's  fee  shall  be  taxed  and  col- 
lected as  part  of  the  costs  in  the  case. 

§  '244.  Action  based  on  the  statute. —  Section  eight,  and  the 
succeeding  section  nine,  provide  for  private  actions  at  law  for 
damages  by  persons  injured  from  the  violations  of  the  provi- 
sions of  the  act,  and  are  the  only  provisions  of  the  act  directly 
relating  to  such  private  actions.  These  sections  are  construed 
in  Parsons  v.  C.  &  N.  W.  R  Co.,  167  U.  S.  447,  42  L.  Ed.  231, 
affirming  11  G.  C.  A.  4S9,  63  Fed.  Rep.  903,  an  action  for  alleged 
discrimination  in  shipping  grain  from  Iowa  to  Chicago  on  ac- 
count of  differential  rates  granted  to  shippers  from  Nebraska. 
The  court  said  that  the  cause  of  action  was  based  entirely  on 
the  statute,  and  to  enforce  what  was  in  its  nature  a  penalty 
imposed  on  account  of  the  wrongful  conduct  of  the  defendant. 
One  who  is  seeking  to  recover  a  penalty  is  bound  by  the  rules 
of  strict  law,  as  no  violation  of  the  statute  was  to  be  presumed 
and  he  must  make  out  a  case  showing  not  by  way  of  inference, 
but  clearly  and  directly,  such  violations.  Such  a  suit  was  dis. 
tinguished  from  the  case  of  a  party  who  had  been  charged  and 
compelled  to  pay  an  unreasonable  rate.  The  right  of  a  ship- 
per, who  pays  reasonable  rates,  to  recover  from  such  company 
3S  of  such  payment  over  the  rates  charged  to  shippers 


§§   245,  246.]  INTERSTATE    COMMERCE    ACT.  2S5 

of  similar  goods  to  the  same  destination  from  another  place  of 
shipment  for  the  same  or  greater  distance  from  it,  is  a  right 
growing  out  of  the  Interstate  Commerce  Act,  and  being  in  the 
nature  of  a  penalty,  can  be  enforced  only  by  strict  proof  show- 
ing clearly  and  directly  the  violations  complained  of. 

§245.  Plaintiff  must  show  injury.— Under  this  section 
the  common  carrier  is  liable  only  to  the  person  or  persons  in- 
jured thereby  for  the  full  amount  of  damages  sustained  in  con- 
sequence of  the  violation  of  the  Act.  The  Supreme  Court  said 
in  the  case  cited  that  as  the  only  right  of  recovery  given  by 
the  Act  was  to  the  individual  for  the  amount  of  damages  sus- 
tained, the  party,  before  he  can  recover  under  the  Act,  must 
show  not  merely  the  wrong  of  the  carrier,  but  that  the  wrong 
has  operated  to  his  injury.  Thus  it  is  not  sufficient  to  show 
the  failure  to  publish  the  tariff  rates,  as  provided  by  section 
six,  but  it  must  be  further  shown  that  this  non-publication  op- 
erated to  his  injury.  Penalties  are  not  recoverable  on  mere 
possibilities. 

The  discriminating  rate  must  be  actually  charged  to  make 
an  offense  or  cause  of  action  under  the  act.  Merely  making  or 
offering  an  illegal  rate  when  it  is  not  shown  that  an  actual 
shipment  was  made,  constitutes  no  legal  injury  to  a  shipper 
who  was  charged  a  higher  rate.  Lehigh  Valley  R.  Co.  v.  Rainey, 
112  Fep.  Rep.  487,  E.  Dist.  of  Penn. 

It  was  held  in  Junod  v.  C.  &  W.  R.  Co.,  47  Fed.  Eep.  290, 
that  where  plaintiff  is  entitled  to  the  same  rate  for  the  shorter 
as  is  afforded  other  shippers  for  the  longer  haul,  the  measure 
of  damages  is  the  difference  between  the  amounts  paid  by  each 
for  like  services,  and  that  it  is  for  the  jury  to  determine  whether 
they  will  allow  interest  on  the  damage;  but  if  it  is  awarded, 
it  should  be  estimated  from  the  date  of  the  last  shipment. 

§246.  Limitation  of  actions. —  The  Interstate  Commerce 
Act  prescribes  no  limitation  of  time  within  which  actions 
based  thereon  shall  be  instituted,  and  therefore,  under  R.  S., 
U.  S.  721,  the  statute  of  limitations  of  the  State  in  which  the 
action  is  brought  must  apply  and  control.  Michigan  Insurance 
Bank  v.  Eldred,  130  U.  S.  693,  32  L.  Ed.  1080.  This  was  di- 
rectly ruled  in  Rattican  v.  Terminal  Railroad  Association,  114 
Fed.  Rep.  666  (E.  Dist.  of  Mo.),  and  in  Copp  v.  Louisville  & 
Nashville  R.  Co.,  50  Fed.  Rep.  164,  Dist.  of  Ky. ;  Murray  v.  Rail- 


286  INTERSTATE    COMMERCE    ACT.  [SECTION    8. 

road  Co.,  35  C.  C.  A.  62,  92  Fed.  Rep.  80S.  In  both  cases 
the  state  statutes  of  limitations  were  held  to  apply.  Where 
under  the  statute  of  a  State  the  defense  of  the  statute  of 
limitations  can  be  invoked  by  the  defendant  by  demurrer, 
the  same  procedure  will  apply  in  the  Federal  court.  It  was 
ruled  in  the  Missouri  case,  that  an  action  to  recover  damages 
for  a  discrimination  in  violation  of  section  2  was  one  to  recover 
money  in  the  nature  of  a  penalty,  and  therefore  must  be 
brought  within  the  time  allowed  by  the  state  statutes  for  such 
action.  In  this  case  the  Court  held,  that  the  allegations  of  the 
petition  were  not  sufficient  to  prevent  the  running  of  the  stat- 
ute as  there  was  no  allegation  that  plaintiff  believed  and  re- 
lied on  defendant's  announcement,  that  it  made  no  discrimina- 
tion in  the  rates,  or  that  he  exercised  diligence  to  ascertain  the 
facts.  In  action  at  common  law,  not  founded  on  the  statute, 
to  recover  unreasonable  charges,  the  unreasonableness  being 
established  by  the  payment  of  rebates,  it  has  been  held  that 
the  statute  of  limitation  did  not  begin  to  run  against  the  ship- 
per as  long  as  he  had  no  knowledge  of  his  rights  owing  to  the 
fault  of  the  carrier  in  concealing  the  facts.  See  Cook  v.  C,  R. 
I.  &  P.  R.  Co.,  SI  Iowa  551,  9  L.  R.  A.  701. 

As  to  the  limitations  governing  proceedings  for  reparation 
before  the  Commission,  see  infra,  section  16. 

§  247.  Assignability  of  claims. —  Claims  for  damages  under 
sections  S  and  9  constitute  property  rights,  which  may  be  as- 
signed, so  as  to  convey  the  beneficial  interests  to  the  assignee; 
and  suits  brought  in  the  United  States  Circuit  Court  under 
these  sections  are  maintainable  in  the  name  of  the  assignee 
under  provisions  of  the  law  of  the  state,  requiring  all  suits  to 
be  brought  in  the  name  of  the  real  party  in  interest.  Edmunds 
v.  Illinois  Central  R.  Co.,  80  Fed.  Rep.  78. 

§  24S.  The  jurisdiction  of  Federal  Courts. —  It  is  specific- 
ally provided  in  section  9  that  a  person  claiming  to  be  dam- 
aged by  any  common  carrier  subject  to  the  provisions  of  the 
act  may  at  his  election  make  complaint  to  the  Commission,  or 
may  bring  suit  in  any  District  or  Circuit  Court  of  the  United 
States  of  competent  jurisdiction.  It  follows  that  the  jurisdic- 
tion of  the  federal  Court  when  invoked  is  not  based  upon  di- 
verse citizenship,  but  on  a  cause  of  action  arising  under  the  laws 
of  the  United  States.  Diverse  citizenship  therefore  is  not 
necessary  to  jurisdiction  of  the  Federal  Court. 


§  2-19.]  INTERSTATE    COMMERCE    ACT.  287 

la  Van  Patten  v.  C,  M.  &  St.  P.  E.  K.  Co.,  74  Fed.  Kep.  981, 
it  was  decided  by  Shiras,  J.,  of  the  northern  district  of  Iowa, 
that  the  limitation  as  to  the  district  in  which  suit  may  be 
brought  in  the  United  States  Circuit  Court  contained  in  the 
Judiciary  Act  of  1SS7  and  1SSS,  did  not  apply  to  suits  brought 
under  sections  8  and  9  of  the  Interstate  Commerce  Act,  but 
that  such  suits  may  be  brought  in  any  district  in  which  the 
defendant  may  be  found,  as  the  limitations  contained  in  those 
acts  are  applicable  only  to  the  cases  whereof  the  State  and 
Federal  Courts  have  concurrent  jurisdiction,  citing  In  re  Hor- 
horst,  150  U.  S.  653,  37  L.  Ed.  1211.  It  was  said  in  the  same 
case  that  the  jurisdiction  under  these  sections  was  exclusive  in 
the  courts  of  the  United  States,  as  the  use  of  the  words  in  sec- 
tion 9  concerning  certain  courts  in  the  United  States  indicated 
that  in  the  view  of  Congress  there  were  courts  in  the  United 
States  who  were  competent  to  take  jurisdiction  over  such  cases 
as  arise  under  the  provisions  of  the  Act,  and  courts  not  com- 
petent to  take  jurisdiction.  But  see  Connor  v.  V.  &  M.  K.  Co., 
36  Fed.  Rep.  273,  decided  in  1888;  Lowry  v.  C,  B.  &  Q.  R.  R. 
Co.,  46  Fed.  Rep.  S3. 

In  Swift  v.  Railroad  Co.,  58  Fed.  Rep.  80S,  it  was  held  that 
a  court  had  no  jurisdiction  over  a  suit  under  the  Act,  removed 
from  a  state  court,  where  the  state  court  had  none.  This 
did  not  apply  where  a  state  court  had  jurisdiction  of  the 
cause  of  action  stated  in  the  petition,  but  a  federal  question 
was  raised  in  the  answer,  which  set  up  an  alleged  discrimina- 
tion violative  of  the  act.  See  also  Sheldon  v.  Wabash  Rail- 
road Co.,  105  Fed.  Rep.  785. 

The  exclusiveness  of  the  jurisdiction  over  suits  brought  un- 
der these  remedial  sections  of  the  act  to  enforce  its  provisions 
must  be  distinguished  from  the  concurrent  jurisdiction  of  the 
state  court  over  questions  in  interstate  commerce,  not  arising 
from  or  based  upon  the  act.  Murray  v.  Railroad  Co.,  62  Fed. 
Rep.  24.     See  supra,  §  44. 

§  249.  Jurisdiction  of  the  Federal  Courts  in  equity  under 
the  Act. —  The  general  chancery  jurisdiction  of  the  Circuit 
Courts  of  the  United  States  in  cases  arising  under  the 
Interstate  Commerce  Act  was  sustained  by  the  Supreme 
Court  in  the  Lennon  case,  166  U.  S.  51S,  41  L.  Ed.  1110.  The 
court  held  that  a  bill  brought  solely  to  enforce  compliance 
with  the  Interstate  Commerce  Act,  and  to  compel  railroad 


2SS  INTERSTATE    COMMERCE    ACT.  [SECTION    8. 

companies  to  comply  with  such  Act,  and  to  offer  proper  and 
reasonable  facilities  for  the  interchange  with  the  complainant 
and  enjoining  them  from  refusing  to  receive  from  complain- 
ant for  transportation  over  their  lines  any  cars  which  might 
be  tendered,  made  a  case  arising  under  the  Constitution  and 
laws  of  the  United  States,  of  which  the  Circuit  Courts  had 
juris  lictiou.  A  case  arises  under  the  Constitution  and  laws  of 
the  United  States  whenever  the  plaintiff  sets  up  a  right  which 
the  parties  had  denied  to  him  and  the  correct  decision  of  the 
case  depends  upon  the  construction  of  such  laws. 

In  Central  Stockyards  Co.  v.  L.  &  N.  R  Co.,  112  Fed.  Rep. 
823,  which  was  a  proceeding  to  enforce  by  injunction  rights 
claimed  under  section  3  of  the  act,  the  court,  though  deciding 
against  the  plaintiff  on  the  merits,  was  of  the  opinion  that  the 
remedies  provided  in  section  9  were  exclusive  for  remedies  at 
law  where  the  parties  did  not  apply  in  the  first  instance  to 
the  Interstate  Commerce  Commission.  The  Supreme  Court 
however  in  affirming  the  judgment,  assumed,  without  decid- 
ing, that  such  rights  as  plaintiff  had,  could  be  enforced  by  bill 
in  equity.     See  192  U.  S.  568,  IS  L.  Ed.  565. 

In  Interstate  Stockyards  Co.  v.  Indianapolis  U.  R.  Co.,  90 
Fed.  Rep.  472,  the  Circuit  Court  of  Indiana  sustained  the  ju- 
risdiction in  equity,  saying  that  where  a  wrong  was  continuing 
in  character  and  not  susceptible  of  accurate  pecuniary  estima- 
tion and  resorts  to  actions  at  law  would  involve  a  multiplicity 
of  suits,  none  of  which  would  end  the  litigation,  a  resort  to 
equity  was  proper. 

The  general  chancery  jurisdiction  has  been  sustained  in 
several  cases  in  the  Federal  Circuit  Courts,  where  it  has  been 
invoked  by  both  railroads  and  shippers  for  the  enforcement 
of  rights  under  the  Act.  Thus  see  Toledo,  Ann  Arbor  R. 
Co.  v.  Railroad  Co.,  51  Fed.  Rep.  730,  19  L.  R.  A.  387,  54 
Fed.  Rep.  740.  In  Little  Rock  &  Memphis  R.  Co.  v.  E. 
Tenn.  etc.  U.  Co.,  47  Fed.  Rep.  771,  the  Circuit  Court  for  the 
western  district  of  Tennessee  in  a  suit  by  a  carrier  claiming 
an  unjust  preference  violative  of  section  3,  said  that  the  court 
had  jurisdiction  to  entertain  all  controversies  whether  at  law  or 
inequity,  arising  under  the  Act  and  that  the  remedies  provided 
in  the  Act  were  merely  supplemented  to  the  ordinary  remedies 
which  were  vested  in  the  court  as  to  all  cases  and  controver- 


§   249.  J  INTERSTATE    COMMERCE    ACT.  2SD 

sies  arising  under  an  act  of  Congress.     See  also  Kentucky  & 
Indiana  Bridge  Co.  v.  L.  &  X.  K.  Co.,  37  Fed.  Rep.  5<i7. 

The  jurisdiction  in  equity  was  also  successfully  invoked  in 
a  suit  brought  by  a  shipper  seeking  to  enjoin  unreasonable 
rates  in  Tift  v.  Southern  Railway  (So.  Dist.  of  Ga.)  123  Fed. 
Rep.  790.  The  suit  in  this  case  was  brought  by  a  large  num- 
ber of  parties  engaged  in  the  manufacture  of  Georgia  pine 
lumber  against  the  Southeastern  Freight  Association  and  a 
number  of  railroads,  and  sought  to  enjoin  the  defendants  from 
enforcing  an  increase  of  two  cents  per  hundred  pounds  in  the 
freight  rate  on  lumber  from  Georgia  to  Ohio  river  points. 
The  Court  said  that  Congress,  in  simply  re-en  acting  the  com- 
mon law  requirements  that  the  rates  should  be  reasonable, 
created  no  new  right  in  the  shipper;  but  by  embodying  this 
common  law  right  in  a  law  of  the  United  States,  Congress 
enabled  him  in  the  case  of  controversy  to  apply  for  relief  to  a 
court  having  jurisdiction  of  controversies  arising  under  the 
Constitution  and  laws  of  the  United  States,  and  that  it  had 
long  been  the  practice  of  courts  of  equity  to  grant  injunctions 
against  extortionate  charges  and  unjust  discriminations.  The- 
court  held  that  it  had  jurisdiction  in  order  to  avoid  a  multi- 
plicity of  suits.  While  thus  sustaining  the  jurisdiction,  the 
Court  dissolved  the  injunction,  pending  application  to  the 
Interstate  Commerce  Commission  for  redress. 

In  United  States  v.  Michigan  Central  Railroad  Co.,  1ST.  Dist. 
III.,  122  Fed.  Rep.  544,  it  was  said  by  Judge  Grosscup  that  a 
court  of  equity  under  its  general  chancery  jurisdiction  could 
remedy  wrongs  caused  by  the  discriminations  of  carriers,  that 
actions  at  law  for  such  injuries  were  plainly  inadequate,  and 
nothing  short  of  the  prohibitive  arm  of  the  court  of  chancery- 
could  give  the  grain  growers  and  other  producers  the  free  com- 
petitive field  for  the  sale  of  their  products  to  which  they  were' 
entitled  under  the  Interstate  Commerce  Act.  The  decision  in 
this  case  was  given  after  the  passage  of  the  Elkins  Act,  but  in  a 
suit  filed  before  its  passage,  this  act  specifically  directing  that 
the  ,writ  of  injunction  could  be  issued  in  suits  filed  by  the 
United  States  at  the  instance  of  the  Commission.  See  infra,  §  310. 
The  Court  seemed  clearly  of  the  opinion  in  the  case  cited  that 
the  only  necessity  for  the  statute  was  to  give  the  right  to  the 
government,  irrespective  of  the  investigation  of  the  Commis- 

19 


290  INTERSTATE    COMMERCE    ACT.  [SECTION    8. 

sion,  and  that  under  its  chancery  jurisdiction  the  power  could 
be  invoked  to  remedy  the  wrong  at  the  instance  of  private 
shippers,  whenever  the  remedy  at  law  was  not  available. 

In  the  case  of  Missouri  Pacific  Hail  way  Co.  v.  United  States, 
L89  U.  S.  274,  47  L.  Ed.  811,  the  Supreme  Court  overruled  the 
Circuit  Court  for  the  So.  Dist.  of  Kansas,  65  Fed.  Rep.  903,  and 
held  that  prior  to  the  passage  of  the  act  of  February  19.  1903, 
infra,  §  310,  known  as  the  Elkins  law,  the  district  attorney  of 
the  United  States,  under  direction  of  the  attorney  general  in 
pursuance  of  a  request  made  by  the  Commission,  was  without 
power  to  commence  a  proceeding  in  equity  against  a  railroad 
corporation  to  restrain  it  from  discriminating  in  its  rates  be- 
tween different  localities,  (Justices  Brewer  and  Harlan  dissent- 
ing.) This  amendatory  act  provides  for  equity  jurisdiction  in 
such  cases  where  proceedings  are  instituted  at  the  instance  of 
the  Interstate  Commerce  Commission,  but  makes  no  change  in 
the  law  so  far  as  the  remedies  open  to  individuals  are  con- 
cerned. The  Court  in  its  opinion  in  this  case  laid  stress  upon 
the  fact  that  prior  to  the  request  of  the  Commission,  upon 
which  the  suit  was  brought,  no  hearing  was  had  before  the 
Commission  concerning  the  matters  of  fact  complained  of  and 
there  was  therefore  no  finding  of  fact  or  order  to  the  carrier 
to  desist.  In  view  of  the  passage  of  the  Elkins  Act,  authorizing 
the  remedy  in  pending  cases,  the  cause  was  remanded  for  fur- 
ther proceedings  under  the  law  as  modified  by  that  act. 

In  the  opinion  of  Grosscup,  J.,  rendered  after  this  decision, 
in  the  Missouri  Pacific  case,  the  Court  said  that  this  decision 
did  not  apply  to  a  case  where  there  had  been  a  preliminary 
hearing  and  finding  by  the  Commission.  The  Court  therefore 
was  inclined  to  the  opinion  that  it  had  jurisdiction  irrespective 
of  the  Elkins  Act,  where  there  was  such  hearing  and  finding, 
though  since  that  enactment  the  question  had  become  an  aca- 
demic one. 

§  250.  Jurisdiction  in  equity  for  protection  of  interstate 
commerce. —  In  another  class  of  cases,  jurisdiction  in  equity 
has  been  successfully  invoked  not  only  by  the  United  States, 
as  in  the  Debs  case,  158  IT.  S.  561,  but  by  railroad  companies 
for  the  protection  of  interstate  commerce  against  unlawful 
combinations  preventing  the  performance  b}r  such  railroad 
companies  of  the  duties  imposed  upon  them  by  the  statute- 


I   250.]  INTERSTATE    COMMERCE    ACT.  291 

Thus  in  Toledo,  A.  A.  &  X.  W.  E.  Co.  v.  Pennsylvania  Com- 
pany, 54  Fed.  Ilep.  730,  Judge  Taft  in  the  northern  district  of 
( )hio,  sustained  the  equitable  jurisdiction  in  a  suit  filed  against 
several  railroad  companies  connecting  with  complainant  com- 
pany at  Toledo,  and  asking  an  order  enjoining  the  companies 
from  refusing  to  receive  and  deliver  complainant's  freight, 
such  refusal  bein£  threatened  on  the  ground  that  the  locomo- 
tive  engineers  of  the  defendants  refused  to  handle  trains  con- 
taining  such  freight  because  the  complainant  employed  on  its 
line  engineers  who  were  not  members  of  their  brotherhood. 
The  Court  sustained  the  jurisdiction  irrespective  of  citizenship, 
saying  it  was  immaterial  what  rights  the  complainant  would 
have  had  before  the  passage  of  the  Interstate  Commerce  Act. 
"  It  was  sufficient  that  Congress  in  the  exercise  of  constitu- 
tional power  had  given  a  positive  sanction  of  the  Federal  law 
to  the  rights  secured  in  the  statute,  and  any  action  involving 
the  enforcement  of  those  rights  was  a  case  arising  under  the 
laws  of  the  United  States."  See  also  Ex, parte  Lennon,  160  U. 
S.  548,  41  L.  Ed.  1110  (1897). 

The  Court  also  held  that  a  mandatory  injunction  was  a 
proper  remedy  to  restore  the  passage  of  freight  backwards  and 
forward,  as  each  carrier  had  the  right  to  enjoy  this  without 
interruption. 


292  INTERSTATE    COMMERCE    ACT.  [SECTION    9. 


Section  9. 

§  351     Persons  claiming  to  be  damaged  may  elect   whether  to  complain 
to  the  Commission  or  bring  suit  in  a  United  States  court. 
253.     Judicial  application  of  section. 

§  251.  Persons  claiming  to  be  damaged  may  elect  whether 
to  complain  to  the  Commission  or  bring  suit  in  a  United 

States  court. — Sec.  9.  That  any  person  or  persons  claiming 
to  be  damaged  by  any  common  carrier  subject  to  the  provisions 
of  this  act  may  either  make  complaint  to  the  Commission  as 
hereinafter  provided  for,  or  may  bring  suit  in  his  or  their  own 
behalf  for  the  recovery  of  the  damages  for  which  such  com- 
mon carrier  may  be  liable  under  the  provisions  of  this  act,  in 
any  district  or  circuit  court  of  the  United  States  of  competent 
jurisdiction ;  but  such  person  or  persons  shall  not  have  the  right 
to  pursue  both  of  said  remedies,  and  must  in  each  case  elect 
which  one  of  the  two  methods  of  procedure  herein  provided 
for  he  or  they  will  adopt.  In  any  such  action  brought  for  the 
recovery  of  damages  the  court  before  which  the  same  shall  be 
pending  may  compel  any  director,  officer,  receiver,  trustee,  or 
agent  of  the  corporation  or  compan}r  defendant  in  such  suit  to 
attend,  appear,  and  testify  in  such  case,  and  may  compel  the 
production  of  the  books  and  papers  of  such  corporation  or  com- 
pany party  to  any  such  suit;  the  claim  that  any  such  testimony 
or  evidence  may  tend  to  criminate  the  person  giving  such  evi- 
dence shall  not  excuse  such  witness  from  testifying,  but  such 
evidence  or  testimony  shall  not  be  used  against  such  person  on 
the  trial  of  any  criminal  proceeding. 

,:  252.  Judicial  application  of  section. —  See  notes  on  sec- 
tion 8,  supra.  The  provisions  in  this  section  for  the  compell- 
ing of  testimony  and  the  production  of  books  and  papers  was 
in  effect  held  unconstitutional  by  the  decision  of  the  Supreme 
Court  in  the  case  of  Hitchcock  v.  Counselman,  infra,  section  12, 
in  that  the  protection  given  to  the  witness  forced  to  give  self- 
incriminating  testimony  was  not  sufficient  under  the  Fifth 
Amendment  of  the  Constitution.  The  act  of  1893,  infra,  section 
12,  only  related  to  testimony  given  before  the  Commission  and 
did  not  apply  to  this  section.  This,  however,  was  remedied  by 
the  act  of  1903.    See  infra,  §  310. 

A  final  judgment  in  the  suit  or  proceeding  before  the  Inter- 
state Commerce  Commission  and  remaining  of  record  in  full 
force  and  effect  is  a  bar  in  the  United  States  Circuit  Court  to 


§  252.]  INTERSTATE    COMMERCE    ACT.  293 

a  suit  brought  [for  the  recovery  of  damages  alleged  to  be 
sustained  by  plaintiff  from  the  same  acts  complained  of  in  the 
statement  before  the  Commission.  See  Riddle  v.  ISTew  York, 
Lake  Erie  &  Western  Railroad  Co.,  U.  S.  Circuit  Court  W. 
Dist.  of  Penn.,  3  Int.  Com.  Rep.  230. 

A  part}7  is  not  barred  from  prosecuting  an  action  in  court 
for  an  individual  claim  because  of  proceedings  instituted  be- 
fore the  Commission  by  an  association  of  which  he  is  a  mem- 
ber, where  it  does  not  appear  that  the  association  presented  a 
claim  for  the  plaintiff  to  the  Commission.  Junod  v.  C.  &  N.  W. 
R.  Co.,  47  Fed.  Rep.  290. 

It  appears  from  the  discussion  in  Congress  that  the  purpose 
of  this  provision  of  the  section,  that  a  party  must  elect  whether 
to  proceed  before  the  Commission  or  in  the  Court,  was  in- 
tended to  prevent  a  party  from  using  the  Commission  merely 
as  a  means  of  procuring  evidence  for  a  suit  in  court. 

Under  this  section  suit  may  be  brought  in  any  Circuit  Court 
or  District  Court  of  the  United  States.  Under  the  Anti-Trust 
Act  of  1890  the  jurisdiction  is  limited  to  the  Circuit  Court. 
In  New  Mexico  v.  Baker,  25  Sup.  Ct.  Rep.  375  (1905),  the  ques- 
tion was  suggested,  though  not  decided,  whether  either  under 
the  Interstate  Commerce  Act  or  the  Anti-Trust  Act  of  1S90 
a  suit  could  be  brought  in  a  Territorial  District  Court,  or 
whether  Congress  intended  that  only  courts  of  the  United 
States  invested  by  the  Third  Article  of  the  Constitution  with 
the  judicial'power  of  the  United  States  should  have  original 
jurisdiction  in  such  suits. 


294  INTERSTATE    COMMERCE    ACT.  [SECTION    10. 


Section  10. 

Page. 
§  253.     Penalties  for  violations  of  act  by  carriers 294 

254.  Amendments  of  1S89 295 

255.  Summary  of  amendments  of  1903 296- 

356.     Illegal  combinations  under  section  10 296 

2.">?.     A  peaceable  strike  not  a  violation  of  the  section 297 

358.     Construction  of  the  statute 298 

259.     Removal  of  indicted  persons  to  other  jurisdictions  for  trial 299 

259a.  Limitation  of  criminal  prosecution  under  the  Act 3.00 

§  253.  Penalties  for  violations  of  act  by  carriers,  etc. — 

Sec.  10.  (As  amended  March  £,  1889,  as  prior  to  amendment  of 
1903,  infra. )  That  any  common  carrier  subject  to  the  provisions 
of  this  act,  or,  whenever  such  common  carrier  is  a  corporation, 
any  director  or  officer  thereof,  or  any  receiver,  trustee,  lessee, 
agent,  or  person,  acting  for  or  employed  by  such  corporation, 
who,  alone  or  with  any  other  corporation,  company,  person,  or 
party,  shall  wilfully  do  or  cause  to  be  done,  or  shall  willingly 
suffer  or  permit  to  be  done,  any  act,  matter  or  thing-  in  this  act 
prohibited  or  declared  to  be  unlawful,  or  who  shall  aid  or  abet 
therein,  or  shall  wilfully  omit  or  fail  to  do  any  act,  matter,  or 
thing  in  this  act  required  to  be  done,  or  shall  cause  or  willingly 
suffer  or  permit  any  act,  matter,  or  thing  so  directed  or  required 
by  this  act  to  be  done  not  to  be  so  clone,  or  shall  aid  or  abet  any 
such  omission  or  failure,  or  shall  be  guilty  of  any  infraction  of 
this  act,  or  shall  aid  or  abet  therein,  shall  be  deemed  guilty  of 
a  misdemeanor,  and  shall,  upon  conviction  thereof  in  any  dis- 
trict court  of  the  United  States  within  the  jurisdiction  of  which 
such  offense  was  committed,  be  subject  to  a  fine  of  not  to  ex- 
ceed five  thousand  dollars  for  each  offense:  Provided,  That  if 
the  offense  for  which  any  person  shall  be  convicted  as  afore- 
said shall  be  an  unlawful  discrimination  in  rates,  fares,  or 
charges,  for  the  transportation  of  passengers  or  property,  such 
person  shall,  in  addition  to  the  fine  hereinbefore  provided  for, 
be  liable  to  imprisonment  in  the  penitentiary  for  a  term  of  not 
exceeding  two  years,  or  both  such  fine  and  imprisonment,  in 
the  discretion  of  the  court. 

Any  common  carrier  subject  to  the  provisions  of  this  act, 
or,  whenever  such  common  carrier  is  a  corporation,  any  officer 
or  agent  thereof,  or  any  person  acting  for  or  employed  by  such 
corporation,  who,  by  means  of  false  billing,  false  classification, 
false  weighing,  or  false  report  of  weight,  or  by  any  other  de- 
vice or  means,  shall  knowingly  and  wilfully  assist,  or  shall 
willingly  suffer  or  permit,  any  person  or  persons  to  obtain 
transportation  for  property  at  less  than  the  regular  rates  then 
established  and  in  force  on  the  line  of  transportation  of  such 
common  carrier,  shall  be  deemed  guilty  of  a  misdemeanor, 


§254.]  INTERSTATE    COMMERCE    ACT.  295 

and  shall,  upon  conviction  thereof  in  any  court  of  the  United 
States  of  competent  jurisdiction  within  the  district  in  which 
such  offense  was  committed,  be  subject  toa  fine  of  not  exceed- 
ing five  thousand  dollars,  or  imprisonment  in  the  penitentiary 
for  a  term  of  not  exceeding  two  years,  or  both,  in  the  discre- 
tion of  the  court,  for  each  offense. 

Any  person  and  any  officer  or  agent  of  any  corporation  or 
company  who  shall  deliver  property  for  transportation  to  any 
common  carrier,  subject  to  the  provisions  of  this  act,  or  for 
whom  as  consignor  or  consignee  any  such  carrier  shall  trans- 
port property,  who  shall  knowingly  and  wilfully,  by  false  bill- 
ing, false  classification,  false  weighing,  false  representation  of 
the  contents  of  the  package,  or  false  report  of  weight,  or  by 
any  other  device  or  means,  whether  with  or  without  the  con- 
sent or  connivance  of  the  carrier,  its  agent  or  agents,  obtain 
transportation  for  such  property  at  less  than  the  regular  rates 
then  established  and  in  force  on  the  line  of  transportation 
shall  be  deemed  guilty  of  fraud,  which  is  hereby  declared  to 
be  a  misdemeanor,  and  shall,  upon  conviction  thereof  in  any 
court  of  the  United  States  of  competent  jurisdiction  within  the 
district  in  which  such  offense  was  committed,  be  subject  for 
each  offense  to  a  fine  of  not  exceeding  five  thousand  dollars  or 
imprisonment  in  the  penitentiary  for  a  term  of  not  exceeding 
two  years,  or  both,  in  the  discretion  of  the  court. 

If  any  such  person,  or  any  officer  or  agent  of  any  such  cor- 
poration or  company,  shall,  by  payment  of  monejr  or  other 
thing  of  value,  solicitation,  or  otherwise,  induce  any  common 
carrier  subject  to  the  provisions  of  this  act,  or  any  of  its  officers  or 
agents,  to  discriminate  unjustly  in  his,  its,  or  their  favor  as 
against  any  other  consignor  or  consignee  in  the  transportation 
of  property,  or  shall  aid  or  abet  any  common  carrier  in  any 
such  unjust  discrimination,  such  person  or  such  officer  or  agent 
of  such  corporation  or  company  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall,  upon  conviction  thereof  in  any  court 
of  the  United  States  of  competent  jurisdiction  within  the  dis- 
trict in  which  such  offense  was  committed,  be  subject  to  a  fine 
of  not  exceeding  five  thousand  dollars,  or  imprisonment  in  the 
penitentiary  for  a  term  of  not  exceeding  two  years,  or  both,  in 
the  discretion  of  the  court,  for  each  offense;  and  such  person, 
corporation,  or  company  shall  also,  together  with  said  com- 
mon carrier,  be  liable,  jointly  or  severally,  in  an  action  on  the 
case  to  be  brought  by  any  consignor  or  consignee  discriminated 
against  in  any  court  of  the  United  States  of  competent  juris- 
diction for  all  damages  caused  by  or  resulting  therefrom. 

§  254.  A  in  end  merits  of*  1889, —  This  section  as  originally 
enacted  contained  only  the  general  penalty  clause  in  the  first 
paragraph.  By  the  amendment  of  March  2,  1889  all  the  re- 
mainder of  the  section  as  above  set  forth  was  added,  includ- 


296  INTERSTATE    COMMERCE    ACT.  [SECTION    10. 

ing  the  specific  penalties  for  false  billing,  classification,  weigh- 
ing, etc.,  recommended  by  the  Commission.  Very  important 
amendments  were  made  by  the  act  of  February  19,  19<»3 
yiiifra,  §  310),  a  summary  whereof  for  convenience  is  here 
given. 

§  255.  Summary  of  amendments  of  1903. —  Firsts  rail- 
road corporation  itself  shall  be  liable  for  prosecution  in  all 
cases  where  the  officers  and  agents  were  liable  under  the  form- 
er law,  such  officers  and  agents  continuing  to  be  liable  as  here- 
tofore. Second,  the  penalty  by  imprisonment  is  abolished, 
and  the  only  punishment  provided  for  offenses,  whether  com- 
mitted before  or  after  the  passage  of  the  amendatory  Act, 
is  the  imposition  of  fines,  which  were  limited  from  a  minimum 
of  81,000  to  a  maximum  of  §20,000.  Third,  the  published  tariff 
is  made  the  standard  of  lawfulness  as  to  effects  of  criminal 
misconduct,  and  any  departure  therefrom  is  declared  to  be  a 
misdemeanor.  Fourth,  jurisdiction  of  the  prosecution  of 
offenses  against  the  Act  is  given  to  any  court  of  the  United 
States  having  jurisdiction  of  crime  within  the  district  within 
which  the  violation  was  committed,  or  through  which  the 
transportation  may  have  been  conducted.  In  the  law  before 
the  amendment,  the  jurisdiction  was  limited  to  the  district 
wherein  the  offense  was  committed.  It  is  specifically  provided 
also  that  in  construing  and  enforcing  the  provisions  of  the  Act, 
the  omission  or  failure  of  any  person  acting  for  or  in  the  em- 
ploy of  any  carrier  acting  within  the  scope  of  his  employment, 
should  in  every  instance  be  deemed  to  be  the  act  of  omission 
or  failure  of  such  carrier. 

§  256.  Illegal  combinations  under  section  10. —  The  most 
important  application  of  section  10  has  been  made  in  connec- 
tion with  labor  combinations,  and  attempted  boycotts  of  inter- 
state railroad  traffic  by  employees  of  other  interstate  railroads 
on  account  of  strikes  among  classes  of  employees  of  such  rail- 
roads. The  law  of  conspiracy  has  been  invoked  under  section 
5440  R.  S.  U.  S.,  which  provides  that  if  two  or  more  persons 
conspire  to  commit  an  offense  against  the  United  States,  and 
one  or  more  of  such  parties  do  any  act  to  effect  that  object 
for  the  conspiracy,  all  parties  to  the  conspiracy  shall  be  liable 
to  the  penalty  prescribed.  {Supra,  chapter  IY.)  See  United 
States  v.  Stephens,  11  Fed.  Hep.  132,  where  the  statute  was 


§   256.]  INTERSTATE    COMMERCE    ACT.  297 

applied  to  the  case  of  a  conspiracy  to  commit  acts  made  mis- 
demeanors by  section  13  of  the  Census  Act. 

In  the  case  of  Toledo,  A.  A.  &  N.  W.  R.  Co.  v.  Pennsylvania 
Co.,  54  Fed.  Rep.  730,  the  court,  Taft,  J.,  held  that  Rule 
No.  12  of  the  Brotherhood  of  Locomotive  Engineers,  then 
in  force,  declaring  that  the  handling  of  the  property  of  a  rail- 
road, when  the  Brotherhood  was  at  issue  with  such  company, 
was  in  violation  of  the  obligation  of  the  Brotherhood,  con- 
stituted a  combination  to  induce  the  violation  of  section  3  of 
the  Interstate  Commerce  Act,  providing  for  the  interchange 
of  facilities  b}7  railroads  engaged  in  interstate  commerce,  and 
made  criminal  by  section  10,  and  that  the  Chief  of  the  Broth- 
erhood and  all  members  engaged  in  enforcing  that  rule  were 
equally  guilty  with  him  as  principals,  and  all  guilty  of  con- 
spiring to  commit  an  offense  against  the  United  States  subject 
to  the  penalties  of  section  5440,  R.  S.  U.  S.  The  Court  granted 
a  mandatory  injunction  to  compel  the  interchange  of  facilities. 
It  was  said  however  that  the  defendants  could  avoid  obedience 
to  the  injunction  by  actually  ceasing  to  be  employees  of  the 
company,  although  if  they  left  the  service  of  the  company 
under  rule  12  of  their  order  so  as  to  compel  the  defendant 
company  to  injure  the  complainant  companj7,  they  were  doing 
an  unlawful  act  and  rendering  themselves  liable  in  damages 
for  any  injuries  which  are  thereby  inflicted,  and  might  be 
liable  to  a  criminal  penalty.  The  arm  of  a  Court  of  equity 
could  not  be  extended  by  mandatory  injunction  to  compel  the 
performance  of  personal  services.  See  54  Fed.  Rep.  746, 
where  one  of  the  engineers  was  adjudged  guilty  of  contempt. 
See  also  0.,  B.  &  Q.  R.  Co.  v.  B.  C.  R.  &  K  R.  Co.,  34  Fed. 
Rep.  481.  See  also  Arthur  v.  Oakes,  11  C.  C.  A.  209,  63  Fed. 
Rep.  310. 

In  Beers  v.  Wabash,  St.  Louis  &  Pacific  Railroad  Co.,  34 
Fed.  Rep.  244,  the  court  made  the  same  holding  as  to  rule  12 
of  the  Brotherhood,  and  as  the  railroad  was  operated  by  a  re- 
ceiver, the  court  said  the  receiver  could  not  refuse  to  receive 
from  and  deliver  to  a  connecting  road,  although  by  doing  so 
•his  own  road  may  be  involved  in  a  strike  with  its  employees. 

§257.  The  incidental  interference  with  commerce  by  a 
peacable  strike  not  a  violation  of  the  section. —  While  the 
•employees  of  a  railroad  corporation  cannot  lawfully  combine 


29S  INTERSTATE    COMMERCE    ACT.  [SECTION    K>. 

to  compel  their  employer  to  discriminate  against  the  traffic  of 
a  connecting  railroad  for  any  reason,  the  incick  ntal  interference 
with  interstate  traffic  resulting  from  a  combined  cessation  of 
employment  by  railroad  employees  for  the  purpose  of  better- 
ing their  own  conditions  of  service  does  not  constitute  a  criminal 
conspiracy  or  an  offense  under  section  ten  of  the  Interstate 
Commerce  Act.  See  Arthur  v.  Oakes,  11  C.  C.  A.  209,  63  Fed. 
Rep.  310.  The  point  was  directly  ruled  by  Judge  Adams  in 
ise  of  the  Wabash  Railroad  Co.  v.  Ilannahan  et  al.  121 
Fed.  Rep.  563,  where  the  court  dissolved  a  temporary  injunc- 
tion granted  without  notice  against  the  officers  of  the  brother- 
ii  >  >  is  of  trainmen  and  firemen  restraining  them  from  ordering 
a  strike  on  the  Wabash  Railroad.  The  Court  said  that  while 
the  employees,  the  members  of  the  brotherhoods,  had  the  right 
to  combine  in  leaving  their  employment,  the  court  would  retain 
jurisdiction  of  the  case  so  that  in  the  event  of  any  molestation 
of  or  interference  with  interstate  commerce  by  them  after 
leaving  employment,  the  lawful  powers  of  the  court  could  be 
invoked  to  restrain  such  interference. 

See  also  Hopkins  v.  United  States,  171  U.  S.  578,  43  L.  Ed. 
29  I,  296;  Taft,  J.  in  Thomas  v.  Cincinnati,  K  O.  &,T.  O.  Rail- 
road, 62  Fed.  Eep.  803.  This  subject  of  what  constitutes  a 
conspiracy  in  restraint  of  trade  has  been  more  extensively 
discussed  in  connection  with  the  more  comprehensive  provi- 
sions of  the  so-called  Anti-Trust  Law  of  1S90,  infra,  §  314  et  seq, 
See  also  charge  to  grand  jury  by  Judge  Grosscup  as  to  what 
constituted  a  criminal  conspiracy  in  interstate  commerce,  62 
Fed.  Rep.  838;  charge  to  grand  jury  in  California  by  Ross,  J., 
62  Fed.  Rep.  834;  by  Morrow,  J.,  62  Fed.  Rep.  S40.  See  supra, 
ch.  IV. 

§258.  Construction  of  the  statute. —  Under  the  statute  be- 
fore its  recent  amendment,  it  was  held  that  a  corporation  could 
not  be  indicted  thereunder,  as  the  only  parties  punishable  were 
individuals.  United  States  v.  Michigan  Central  Railroad  Co., 
i:;  Fed.  Rep.  26.  (But  see  act  of  Feb.  19,  1903  infra,  §310). 
The  agent  who  was  a  party  to  the  carrying  of  freight  or  pas- 
sengers at  a  rate  less  than  the  published  tariff  was  subject  to 
indictment.  Under  that  provision  of  the  section  making  it  un- 
lawful for  carriers  to  receive  greater  or  less  compensation 
from  one  shipper  than  from  another  for  an  equal  service,  an 
indictment  stating  that  a  carrier  gave  a  rebate  to  one  shipper 


§   259.]  INTERSTATE    COMMERCE    ACT.  299' 

without  stating  any  instance  in  which  he  refused  a  like  rebate 
to  another  shipper,  is  defective  in  not  showing  discrimina- 
tion. United  States  v.  Ilanley,  71  Fed.  Rep.  672.  It  was  held 
in  the  same  case  that  an  indictment  for  paying  or  receiving 
rebates  would  not  lie  under  the  clause  making  it  unlawful  for 
the  carrier  by  means  of  false  billing,  classification  or  any  other 
device  knowingly  to  assist  or  suffer  any  person  to  obtain  trans- 
portation at  less  than  the  regular  tariff  rates. 

An  agent  of  a  railroad  who  merely  collects  freight  and  has 
nothing  to  do  with  fixing  the  rates  is  not  indictable  under  the 
act  for  coilecting  a  greater  rate  for  a  shorter  than  for  a  longer 
haul.  United  States  v.  Mellin,  D.  of  Kan.,  53  Fed.  Rep.  229.  As 
to  essentials  of  indictments  under  the  Act,  see  also  United 
States  v.  De  Coursey,  82  Fed.  Rep.  302;  United  States  v.  Henle}^ 
71  Fed.  Rep.  672. 

This  offense  of  obtaining  transportation  of  property  at  less 
than  regular  rates  by  means  of  false  billing,  etc.,  is  not  one 
that  requires  the  transportation  of  the  property  to  its  destina- 
tion to  make  it  complete,  but  the  offense  is  complete  when  the 
contract  for  the  illegal  rate  was  secured,  and  could  only  be 
prosecuted  in  that  district.  Davis  v.  United  States,  104  Fed. 
Rep.  136,  43  C.  C.  A.  448. 

In  United  States  v.  Howell,  56  Fed.  Rep.  21,  West.  Dist. 
of  Ark.,  it  was  held  that  shippers  of  lumber  could  be  convicted 
of  conspiracy  to  violate  the  Interstate  Commerce  Act  upon 
showing  that  their  servants  procured  unlawful  discrimination  in 
rates  by  false  weights,  provided  they  knew  of  the  unlawful 
acts  and  permitted  them  to  continue.  United  States  v.  De 
Coursey,  82  Fed.  Rep.  302. 

§259.  Removal  of  indicted  persons  to  other  districts  for 
trial.— In  Davis  v.  United  States,  43  C.  C.  A.  448,  104  Fed. 
Rep.  136,  the  appellant  was  indicted  in  the  northern  district 
of  Texas  for  trial  under  an  indictment  alleging  violation  of  sec- 
tion ten,  paragraph  three,  of  the  Act  to  Regulate  Commerce. 
The  United  States  District  Court  at  Cincinnati  made  an  order 
directing  the  removal  of  the  appellant  for  trial  to  the  northern 
district  of  Texas.  It  was  claimed  that  the  offense  was  com- 
mitted in  Texas,  although  the  shipment  was  made  from  Cincin- 
nati to  Texas,  under  the  provision  of  section  781,  R.  S.  U.  S., 
providing  that  when  any  offense  against  the  United  States  was- 
begun  in   one  judicial  circuit   and  completed  in   another,    it 


300  INTERSTATE    COMMERCE    ACT.  [SECTION    10. 

should  be  deemed  to  have  been  committed  in  either  and  may 
be  dealt  with,  inquired  of  and  tried  or  punished  in  either 
district,  in  the  same  manner  as  if  it  had  been  actually  and 
wholly  committed  therein.  The  Court  held  that  this  section 
was  intended  to  provide  for  that  class  of  cases  where  the 
crime  was  not  completed  in  one  district,  but  where  a  separate 
and  essential  act  of  commission  constituting  the  crime  is  com- 
mitted in  another  district,  and  that  this  section  therefore  had 
no  application  to  the  case  of  a  shipper  who  obtains  lower  rates 
by  means  of  false  classification,  billing,  etc.  The  offense  in  that 
case  is  complete  when  the  shipment  is  made.  The  Court 
therefore  held  that  the  District  Court  erred  in  ordering  a  re- 
moval of  the  defendant  to  Texas,  and  he  was  ordered  dis- 
charged. 

As  to  removal  of  United  States  prisoners  from  one  district 
to  another  under  1014,  R.  S,  see  Green  v.  Henkel,  183  IT.  S. 
219,  10  L.  Ed.  177;  Beaver  v.  Henkel,  101  II.  S.  73,  18  L.  Ed. 
S82. 

259a.    Limitation  of  criminal  prosecution  under  the  Act. 

While  there  is  no  limitation  of  criminal  prosecution  fixed  in 
the  Act,  sec.  1044,  E.  S.  U.  S.  provides  limitation  of  three 
years,  in  case  of  all  offenses  "  other  than  capital. "  "  Suits  and 
prosecutions  for  penalties  and  forfeitures  "  are  subject  under 
sec.  1047,  R.  S.  U.  S.  to  limitation  of  five  years. 


§  260.]  INTERSTATE    COMMERCE    ACT.  3l»I 


Section  11. 
§  260.     Interstate  Commerce  Commission  —  How  appointed. 

§  2(>0.  Interstate  Commerce  Commissioners  —  How  ap- 
pointed.—  Sec.  11.  That  a  Commission  is  hereby  created  and 
established  to  be  known  as  the  Interstate  Commerce  Commis- 
sion, which  shall  be  composed  of  live  Commissioners,  whoshall 
be  appointed  by  the  President,  by  and  with  the  advice  and 
consent  of  the  Senate.  The  Commissioners  first  appointed 
under  this  act  shall  continue  in  office  for  the  term  of  two, 
three,  four,  five,  and  six  years,  respectively,  from  the  first  day 
of  January,  anno  Domini  eighteen  hundred  and  eighty-seven, 
the  term  of  each  to  be  designated  by  the  President;  but  their 
successors  shall  be  appointed  for  terms  of  six  years,  except  that 
any  person  chosen  to  fill  a  vacancy  shall  be  appointed  only  for 
the  unexpired  time  of  the  Commissioner  whom  he  shall  suc- 
ceed. Any  Commissioner  may  be  removed  by  the  President 
for  inefficiency,  neglect  of  duty,  or  malfeasance  in  office.  Not 
more  than  three  of  the  Commissioners  shall  be  appointed  from 
the  same  political  party.  No  person  in  the  employ  of  or  hold- 
ing any  official  relation  to  any  common  carrier  subject  to  the 
provisions  of  this  act,  or  owning  stock  or  bonds  thereof,  or 
who  is  in  any  manner  pecuniarily  interested  therein,  shall  enter 
upon  the  duties  of  or  hold  such  office.  Said  Commissioners 
shall  not  engage  in  any  other  business,  vocation,  or  employ- 
ment. No  vacancy  in  the  Commission  shall  impair  the  right 
of  the  remaining  Commissioners  to  exercise  all  the  powers  of 
the  Commission. 

The  Commission  was  organized  in  1887  by  the  appointment 
by  President  Cleveland  and  confirmation  by  the  Senate  of  the 
following  members: 

Hon.  Thomas  M.  Cooley,  of  Michigan, 

Hon.  William  P.  Morrison,  of  Illinois, 

Hon.  Walter  L.  Bragg,  of  Alabama, 

Hon.  Aldace  F.  Walker,  of  Vermont, 

Hon.  Augustus  Schoonmaker,  of  New  York. 
Judge  Cooley  served  as  Chairman  until  his  retirement  in 
1891.  He  was  succeeded  by  Mr.  Morrison,  who  served  as 
Chairman  until  Dec.  31,  1897,  when  he  was  succeeded  by  Mr. 
Martin  A.  Knapp,  who  had  succeeded  Mr.  Schoonmaker,  of 
New  York,  on  the  Commission.  Mr.  Knapp  is  now  Chairman 
(1905).  Mr.  E.  A.  Mosley  has  served  as  Secretary  of  the  Com- 
mission since  its  organization. 


INTERSTATE    COMMERCE    ACT.  [SECTION    11. 

Vacancies  in  the  Commission  have  been  filled  from  time  to 
time  in  accordance  with  the  directions  of  the  act  that  not  more 
than  two  shall  be  members  of  the  same  political  party.  The 
Commission  is  now  (March,  1905)  composed  of  the  following 
members: 

Honorable  Martin  A.  Knapp,  of  Xew  York,  Chairman;  term 
expiring  December  31,  1908. 

Honorable  Judson  C.  Clements,  of  Georgia,  term  expiring 
December  20,  1906. 

Honorable  Charles  A.  Prouty,  of  Vermont,  term  expiring 
1  >ecember  31, 1907. 

Honorable  Joseph  TV.  Fifer,  of  Illinois,  term  expiring  March 
0,  1910. 

Honorable  Francis  M.  Cockrell,  of  Missouri,  term  expiring 
March  19,  1911. 


§  261.]  interstate  commerce  act.  303 

Section  12. 

Page 
§  261.     Power  and  duty  of  Commission  to  inquire  into  business  of  car- 
riers and  keep  itself  informed  in  regard  thereto 303 

262.  Amendments 305 

263.  The  compelling  of  self-incriminating  testimony 305 

264.  The  immunity  of  corporations    from  self-incriminating  testi- 

mony     306 

265.  Probative  effect  of  enforced  self-incriminating  testimony 309 

266.  Immunity  is  limited  to  the  subject  of  testimony  309 

267.  Power  of  the  court  to  enforce  testimony  before  the  Commis- 

sion sustained 310 

268.  Relevancy  of  testimony  before  the  Commission  310 

269.  General  powers  of  the  Commission 311 

§  261.  Power  and  duty  of  Commission  to  inquire  into 
business  of  carriers  and  keep  itself  informed  in  regard 
thereto. —  Sec.  12.    (As  amended  March  8,  1889,  and  February 

10,  1891.)  That  the  Commission  hereby  created  shall  have 
authority  to  inquire  into  the  management  of  the  business  of 
all  common  carriers  subject  to  the  provisions  of  this  act,  and 
shall  keep  itself  informed  as  to  the  manner  and  method  in 
which  the  same  is  conducted,  and  shall  have  the  right  to  ob- 
tain from  such  common  carriers  full  and  complete  information 
necessary  to  enable  the  Commission  to  perform  the  duties  and 
carry  out  the  objects  for  which  it  was  created ;  and  the  Com- 
mission is  hereby  authorized  and  required  to  execute  and  en- 
force the  provisions  of  this  act;  and,  upon  the  request  of  the 
Commission,  it  shall  be  the  duty  of  any  district  attorney  of 
the  United  States  to  whom  the  Commission  may  apply  to  in- 
stitute in  the  proper  court  and  to  prosecute  under  the  direc- 
tion of  the  Attorney-General  of  the  United  States  all  neces- 
sary proceedings  for  the  enforcement  of  the  provisions  of  this 
act  and  for  the  punishment  of  all  violations  thereof,  and  the 
costs  and  expenses  of  such  prosecution  shall  be  paid  out  of  the 
appropriation  for  the  expenses  of  the  courts  of  the  United 
States;  and  for  the  purposes  of  this  act  the  Commission  shall 
have  power  to  require,  by  subpoena,  the  attendance  and  testi- 
mony of  witnesses  and  the  production  of  all  books,  papers, 
tariffs,  contracts,  agreements,  and  documents  relating  to  any 
matter  under  investigation. 

Such  attendance  of  witnesses,  and  the  production  of  such 
documentary  evidence,  may  be  required  from  any  place  in  the 
United  States,  at  any  designated  place  of  hearing.  And  in 
case  of  disobedience  to  a  subpoena,  the  Commission,  or  any  party 
to  a  proceeding  before  the  Commission,  may  invoke  the  aid 
of  any  court  of  the  United  States  in  requiring  the  attendance 
and  testimony  of  witnesses  and  the  production  of  books,  pa- 
pers, and  documents  under  the  provisions  of  this  section. 


304  INTERSTATE    COMMERCE    ACT.  [SECTION    12. 

And  any  of  the  circuit  courts  of  the  United  States  within 
the  jurisdiction  of  which  such  inquiry  is  carried  on  may,  in 
case  of  contumacy  or  refusal  to  obey  a  subpoena  issued  to  any 
common  carrier  subject  to  the  provisions  of  this  act,  or  other 
person,  issue  an  order  requiring  such  common  carrier  or  other 
person  to  appear  before  said  Commission  (and  produce  books 
and  papers  if  so  ordered)  and  give  evidence  touching  the  mat- 
ter in  question;  and  any  failure  to  obey  such  order  of  the 
court  may  be  punished  by  such  court  as  a  contempt  thereof. 
The  claini  that  any  such  testimony  or  evidence  may  tend  to 
criminate  the  person  giving  such  evidence  shall  notexcuse 
such  witness  from  testifying;  but  such  evidence  or  testimony 
shall  not  be  used  against  such  person  on  the  trial  of  any  crim- 
inal proceeding. 

The  testimony  of  any  witness  may  be  taken,  at  the  instance 
of  a  party  in  any  proceeding  or  investigation  depending  before 
the  Commission,  by  deposition,  at  any  time  after  a  cause  or 
proceeding  is  at  issue  on  petition  and  answer.  The  Commis- 
sion may  also  order  testimony  to  be  taken  by  deposition  in 
any  proceeding  or  investigation  pending  before  it,  at  any  stage 
of  "such  proceeding  or  investigation.  Such  depositions  may  be 
taken  before  any  judge  of  any  court  of  the  United  States,  or 
any  commissioner  of  a  circuit,  or  any  clerk  of  a  district  or  cir- 
cuit court,  or  any  chancellor,  justice,  or  judge  of  a  supreme  or 
superior  court,  mayor  or  chief  magistrate  of  a  city,  judge  of  a 
county  court,  or  court  of  common  pleas  of  any  of  the  United 
Mites,  or  any  notary  public,  not  being  of  counsel  or  attorney 
to  either  of  the  parties,  nor  interested  in  the  event  of  the  pro- 
ceeding or  investigation.  Reasonable  notice  must  first  be  giv- 
en in  writing  by  the  party  or  his  attorney  proposing  to  take 
such  deposition  to  the  opposite  party  or  his  attorney  of  record,  as 
either  may  be  nearest,  which  notice' shall  state  the  name  of  the 
witness  and  the  time  and  place  of  the  taking  of  his  deposition. 
An  v  person  may  be  compelled  to  appear  and  depose,  and  to  pro- 
duce documentary  evidence,  in  the  same  manner  as  witnesses 
may  be  compelled  to  appear  and  testify  and  produce  document- 
ary" evidence  before  the  Commission  as  hereinbefore  provided. 

Every  person  deposing  as  herein  provided  shall  be  cau- 
tioned and  sworn  (or  affirm,  if  he  so  request)  to  testify  the 
whole  truth,  and  shall  be  carefully  examined.  His  testimony 
shall  be  reduced  to  writing  by  the  magistrate  taking  the  de- 
position, or  under  his  direction,  and  shall  after  it  has  been 
reduced  to  writing,  be  subscribed  by  the  deponent. 

If  a  witness  whose  testimony  may  be  desired  to  be  taken 
by  deposition  be  in  a  foreign  country,  the  deposition  may  be 
taken  before  an  officer  or  person  designated  by  the  Commis- 
sion, or  agreed  upon  by  the  parties  by  stipulation  in  writing 
to  be  filed  with  the  Commission.  All  depositions  must  be 
promptly  filed  with  the  Commission. 


§§  262,  263.J  INTERSTATE    COMMERCE    ACT.  305 

"Witnesses  whose  depositions  are  taken  pursuant  to  this  act, 
and  the  magistrate  or  other  officer  taking  the  same,  shall  sev- 
erally  be  entitled  to  the  same  fees  as  are  paid  for  like  services 
in  the  courts  of  the  United  States. 

§  262.  Amendments. —  Section  12  was  amended  March  2, 
1889,  again  on  February  10,  1891,  again  February  11,  1893, 
and  finally  also  amended  by  sections  2  and  3  of  the  act  of 
February  19,  1903.     See  infra,  §  310. 

The  first  amendment,  that  of  1889,  was  in  the  first  para- 
graph, empowering  the  Commission  to  exact  and  enforce  the 
provisions  of  the  Act,  making  it  the  duty  of  the  district  at- 
torney to  prosecute  under  the  direction  of  the  Attorney-Gen- 
eral of  the  United  States,  and  also  more  specifically  pro- 
viding for  the  summoning  of  witnesses,  which  last  provi- 
sion as  to  the  summoning  of  witnesses  was  again  made 
more  specific  and  comprehensive  in  the  act  of  1891.  As  to 
the  amendments  of  1893,  see  infra,  §  263,  Self-incriminating 
testimony. 

§  263.  The  compelling  of  self-incriminating  testimony. 
The  most  important  judicial  discussion  under  this  section  has 
been  in  relation  to  the  power  of  enforcing  self-incriminating 
testimony.  The  provision  of  the  third  paragraph  of  the  sec- 
tion, that  a  party  could  be  compelled  to  give  self-incriminating 
testimony,  but  providing  that  the  evidence  given  by  him 
should  not  be  used  against  him,  was  held  in  Counselman  v. 
Hitchcock,  142  U.  S.  517,  35  L.  Ed.  1110  (reversing  44  Fed. 
Rep.  271),  to  be  unconstitutional  as  violative  of  the  Fifth 
Amendment  to  the  Constitution,  which  declares  that  no  per- 
son shall  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself.  The  Court  disapproved  the  decision  of  the 
New  York  Court  of  Appeals  in  People  v.  Kelley,  21  N.  Y.  74, 
which  held  the  immunity  in  a  similar  statute  sufficient,  and 
ruled  that  the  statutory  enactment  to  be  valid  must  afford  ab- 
solute immunity  against  further  prosecutions.  The  petitioner 
who  had  declined  to  answer,  whether  he  had  received  a  rebate 
or  not,  on  the  ground  that  it  would  incriminate  him,  was  dis- 
charged on  habeas  corpus.  After  this  decision,  the  statute 
was  amended  by  the  passage  of  the  act  of  February  11,  1893, 
as  follows: 

That  no  person  shall  be  excused  fro  n  attending  and  testi- 
fying or  from  producing  books,  papers,  tariffs,  contracts,  agree- 
20 


306  INTERSTATE    COMMERCE    ACT.  [SECTION    12. 

ments  and  documents  before  the  Interstate  Commerce  Com- 
mission, or  in  obedience  to  the  subpoena  of  the  Commission, 
whether  such  subpoena  be  signed  or  issued  by  one  or  more 
Commissioners,  or  in  any  cause  or  proceeding,  criminal  or 
otherwise,  based  upon  or  growing  out  of  any  alleged  violation 
of  the  act  of  ( 'ongress,  entitled  "  An  act  to  regulate  commerce," 
approved  February  fourth,  eighteen  hundred  and  eighty-seven, 
or  o[  any  amendment  thereof  on  the  ground  or  for  the  reason 
that  the  testimony  or  evidence,  documentary  or  otherwise,  re- 
quired of  him,  may  tend  to  criminate  him  or  subject  him  to  a 
penalty  or  forfeiture.  But  no  p<  rson  shall  bepros<  cutt  dor  sub- 
I  to  any  penalty  or  forfeiture  for  or  on  account  of  any  trans- 
action, m,atter  or  thing,  concerning  which,  he  may  testify,  or  pro- 
due.-  evidence,  documentary  or  otherwise,  before  said  Commis- 
sion, or  in  obedience  to  its  subpoena,  or  the  subpoena  of  either 
of  them,  or  in  any  such  case  or  proceeding:  Provided,  That 
no  person  so  testifying  shall  be  exempt  from  prosecution  and 
punishment  for  perjury  committed  in  so  testifying. 

Any  person  who  shall  neglect  or  refuse  to  attend  and  tes- 
tify, or  to  answer  any  lawful  inquiry,  or  to  produce  books,  pa- 
pers, tariffs,  contracts,  agreements  and  documents,  if  in  his 
power  to  do  so,  in  obedience  to  the  subpoena  or  lawful  require- 
ment of  the  Commission  shall  be  guilty  of  an  offense  and  upon 
conviction  thereof  by  a  court  of  competent  jurisdiction  shall 
be  punished  by  fine  not  less  than  one  hundred  dollars  nor 
more  than  five  thousand  dollars,  or  by  imprisonment  for 
not  more  than  one  year  or  by  both  such  fine  and  imprison- 
ment. 

§  264.  Immunity  of  corporations  from  self-incrimina- 
tion.— In  a  prosecution  under  section  10,  before  the  amend- 
ments of  1903,  it  was  held  that  corporations  could  not  be  in- 
dicted, as  the  only  parties  punishable  thereunder  were  indi- 
viduals; an  official  could  not  therefore  excuse  himself  from 
testifying  on  the  ground  that  his  testimony  would  implicate 
the  corporation,  his  employer.  In  re  Peasley,  44  Fed.  Eep. 
271.  In  a  prosecution  under  section  5  of  the  Act,  where- 
under  pooling  between  carriers  is  made  unlawful,  and  each 
day  of  its  continuance  made  a  separate  offense,  indictments 
against  carrier  corporations  were  returned  by  the  grand 
jury  in  western  district  of  Tennessee  under  charge  of  Ham- 
mond, J.  115  Fed.  Hep.  588.  In  this  charge  the  opinion  was 
expressed  not  only  that  corporations  were  indictable  under 
section  5,  but  that  under  the  act  of  1893  there  was  no  vicar- 
ious immunity  and  that  there  was  no  immunity  to  the  corpor- 
ation from  the  enforced  testimony  of  the  officers,  or  produc- 
tions of  its  book's  and  papers. 


§  261.]  INTERSTATE    COMMERCE    ACT.  307 

The  Elkins  Act  of  February  19,  1903  (infra,  §  310),  has 
distinctly  changed  the  relations  of  corporations  to  the  act, 
Jirst,  in  making  (sec.  1)  the  corporation  liable  for  conviction 
for  misdemeanor  and  fine  on  account  of  any  act  done  or 
omitted  in  violation  of  the  statute  by  any  officer  acting  in  its 
behalf,  and,  second,  in  expressly  authorizing  (sec.  3)  the  en- 
forced production  of  the  corporate  books  and  papers;  and  it 
then  grants  immunity  in  the  following  language: 

"The  claim  that  such  testimony  or  evidence  may  tend  to 
criminate  the  person  giving  such  evidence  shall  not  excuse 
such  person  from  testifying,  or  such  corporation  from  producing 
its  books  and  papers,  but  no  person  shall  be  prosecuted  or 
subjected  to  any  penalty  or  forfeiture,  for  or  on  account  of 
any  transaction,  matter,  or  thing  concerning  which  he  may 
testify,  or  produce  evidence  documentary  or  otherwise  in  such 
proceeding." 

While  the  immunity  is  thus  extended  to  the  "  person  "  tes- 
tifying or  producing  evidence  and  there  is  no  express  inclu- 
sion of  corporations  in  "person"  in  the  Interstate  Commerce 
Act,  as  there  is  in  section  8,  of  the  Anti-Trust  Act,  the  terms 
"person"  and  "citizen"  have  been  construed  in  statutes  as  in- 
cluding corporations,  when  necessary  to  effect  the  legislative  in- 
tent, that  is  when  within  the  reason  of  the  Act.  Ramsay  v.  La- 
coma  Land  Co.,  196  U.  S.  360.  Corporations  are  "  persons  " 
entitled  under  the  Fourteenth  Amendment  to  "due  process  of 
law,"  and  the  "equal  protection  of  the  laws."  The  rule  of 
equity,  that  the  production  of  books  and  papers  will  not  be  en- 
forced when  the  production  would  expose  a  party  to  a  penalty 
or  forfeiture,  has  been  applied  to  corporations.  Kirkpatrick  v. 
Pope  Manf.  Co.,  61  Fed.  Rep.  46;  U.  S.  v.  National  Lead  Co. 
(Disk  of  N.  J.),  75  Fed.  Rep.  94;  Newgold  v.  Am.  Elec.  ite 
Nav.  Co.,  108  Fed.  Rep.  341,  construing  sec.  724  R.  S.  In  the 
Southern  Pacific  R,  R.  Tax  cases,  13  Fed.  Rep.  722, 18  Fed.  Rep. 
385,  the  enforced  production  of  corporate  books  washeldto  vio- 
late the  property  rights  of  the  corporators  and  stockholders. 

The  act  of  1893  was  sustained  in  Brown  v.  Walker,  161  U. 
S.  591,  40  L.  Ed.  819,  the  Supreme  Court  holding  that  it  af- 
forded absolute  immunity  against  prosecutions,  federal  or 
state,  for  the  offense  to  which  the  question  related,  and  there- 
fore deprived  the  witness  of  his  constitutional  right  to  decline 
to  answer.  (Justices  Shiras,  Gray,  White  and  Field  dissent- 
ino-  on  the  ground  that  the  state  courts  would  not  be  com- 


308  INTERSTATE    COMMERCE    ACT.  [SECTION    12. 

pelled  to  accept  the  saving  clause  of  the  federal  statute  in  re- 
spect to  crimes  against  the  state.)  This  amendment  of  1S93 
only  refers  to  testimony  before  the  Interstate  Commerce  Com- 
mission, and  does  not  refer  to  testimony  given  before  a  court 
in  a  suit  brought  under  the  provisions  of  sections  S  and  9  of 
the  act.  The  decision  in  the  Counselman  case  would  clearly 
apply  to  the  provision  of  section  9,  providing  that  self-incrim- 
inating testimony  forced  from  a  witness  should  not  be  used 
against  him.  The  latter  act  however,  February  19, 19U3,  infra,, 
%  310,  extends  the  same  provision  of  immunity  to  all  wit- 
nesses, whether  before  the  Commission  or  before  a  court,  com- 
pelled to  give  self-incriminating  testimony. 

While  immunity  under  the  legislative  amnesty  is  directed 
especially  against  criminal  punishment  of  individual  witnesses, 
and  a  corporation  cannot  testify  except  through  the  produc- 
tion of  its  books  and  papers,  it  would  seem  that  as  far  as  it 
can  be  indicted  or  punished  by  fine  or  loss  of  franchise,  that  it 
should  be  protected  by  the  legislative  amnesty  against  convic- 
tion by  self-crimination  through  the  enforced  production  of  its 
books  and  papers.  In  State  v.  Simmons  Hardware  Co.,  109  Mo. 
118,  a  corporation  was  held  protected  by  the  State  Constitution 
against  self-incrimination.  See  also  People  v.  Butler  Street 
Foundry,  201  111.  236;  Logan  v.  Penn.R.K.  Co.,  132  Pa.  St.  4u3. 
A  corporation  may  be  guilty  of  a  crime  when  the  only  intention 
required  is  an  intention  to  do  the  prohibited  thing.  A  corpora- 
tion was  held  indictable  and  subject  to  fine  for  violating  an 
eight  hour  law'.  U.  S.  v.  John  Kelso  Co.,  (Cal.),  86  Fed.- Pep.  304. 

This  statutory  immunity  is  personal  to  the  witness  testify- 
in.;.  Drown  v.  Walker,  supra.  There  is  therefore  no  immun- 
ity to  the  corporation  b}^  reason  of  the  testimony  of  its  officers, 
nor  can  an  official  or  employee  (in  absence  of  a  statutory  am- 
nesty) refuse  to  produce  books  of  an  employer  corporation  on 
rii.-  groun  1  that  it  would  implicate  the  corporation  employer. 
Gardner  v.  Early,  09  Iowa,  42.  Cases  are  to  be  distinguished 
however,  where  the  witness  is  himself  implicated  and  the  en- 
tries in  the  corporate  books  are  also  his  own. 

The  immunity  to  a  corporation,  as  to  an  individual,  from  the 
enforced  production  of  books  and  papers,  extends  only  to  those 
which  are  private;  that  is,  those  which  can  only  be  enforced 
by  virtue  of  the  statutory  immunity.  It  does  not  include  books, 


§§  265,  266.]  INTERSTATE    COMMERCE    ACT.  309 

papers  or  records,  whether  corporate  or  individual,  which  are 
made  public  by  law.  Thus  the  railroad  rates  and  regulations 
concerning  rates  are  required  by  law  to  be  public.  A  tariff 
sheet  of  a  railroad  which  is  required  by  law  to  be  publicly 
posted  is  not  a  private  paper,  and  its  enforced  production  in 
a  prosecution  against  a  railroad  company  is  not  compelling 
it  in  a  legal  sense  to  give  evidence  against  itself.  L.  &  1ST.  R. 
Co.  v.  Commonwealth  (Ky.  1899),  51  S.  W.  Rep.  167;  as  to  ap- 
plications of  same  principle,  see  People  v.  Coombs,  158  N".  Y. 
532  (1899);  State  v.  Donovan,  10  K  Dak.  203;  State  v.  Smith, 
74  Iowa,  580. 

§  265.  Probative  effect  of  enforced  self-incriminating 
testimony. —  It  was  held  in  Burrell  v.  Montana,  194  U.  S.  572 
(1904),  48  L.  Ed.  1122,  that  testimony  given  in  an  examination 
in  bankruptcy,  which  was  used  without  objection  on  the  trial 
of  the  bankrupt  on  indictment  in  the  state  court  did  not  vio- 
late any  federal  right.  Section  7  of  the  Bankrupt  Act  provid- 
ing that  the  testimony  should  not  be  offered,  did  not  deprive 
the  evidence  of  probative  force  when  admitted  without  objec- 
tion in  the  State  court. 

§  266.  Immunity  is  limited  to  the  subject  of  testimony. — 
In  United  States  v.  Price,  96  Fed. Rep.  960,  parties  were  indicted 
for  conspiring  to  obstruct  justice  by  taking  from  a  witness 
subpoenoed  to  appear  before  a  United  States  Grand  Jury,  cer- 
tain papers  which  he  had  been  directed  to  produce  as  furnish- 
ing testimony  concerning  a  charge  of  violation  of  the  Act  to 
Regulate  Commerce  then  before  the  Grand  Jury.  Two  of  the  in- 
dicted persons  testified  that  they  had  been  called  before  and 
had  testified  before  the  Grand  Jury  concerning  the  violation 
of  the  Act  to  Regulate  Commerce,  and  had  also  testified  con- 
cerning the  taking  of  the  papers  from  the  witness.  The  Court 
overruled  the  pleas,  saying  it  was  not  the  intention  of  Congress 
to  grant  to  a  witness  amnesty  as  to  other  crimes  merely  be- 
cause he  had  testified  to  the  violation  of  the  Interstate  Com- 
merce Act.  The  amnesty  was  only  co-extensive  with  the  re- 
quirement to  testify.  The  first  clause  of  the  act  of  1893  made 
necessary  the  second  clause;  otherwise  neither  would  have  been 
effective.  The  latter  supplemented  the  former  and  was  lim- 
ited by  it,  and  referred  to  nothing  except  to  matters  that  wit- 
nesses should  not  be  excused  from  testimony  by  virtue  of  the 


310  INTEKSTATE    COMMERCE    ACT.  [SECTION    12. 

Act.  The  Court  said  that  this  was  not  the  proper  construction 
of  the  act  of  1S93.  The  least  collusion  with  a  friendl}T  grand 
jury  might  enable  the  worst  violator  of  the  laws  of  the  United 
States  to  entitle  himself  to  testify  by  procuring-  himself  to  be 
summoned  as  a  witness  nominally  to  testify,  or  to  be  asked 
about  a  violation  of  th.3  Interstate  Commerce  Law. 

^  '2iu.  Power  of  the  court  to  euforce  testimony  before 
the  Com  mission  sustained. —  In  Brimson  v.  Interstate  Com- 
merce  Commission,  154  U.  S.  4-17,  3S  L.  Ed.  1017,  the  Supreme 
Court,  reversing  54  Fed.  Rep.  47(3,  sustained  the  authority  of 
the  Circuit  Court  under  this  section  of  the  Interstate  Commerce 
Act  to  enforce  the  giving-  of  testimony  and  the  production  of 
books  and  papers.  It  was  strongly  urged  that  the  provision 
was  in  conflict  with  the  Constitution,  in  that  it  imposed  on 
judicial  tribunals  duties  that  were  not  judicial  in  their  char- 
acter. But  the  Court  ruled  that  the  proceeding  under  the 
twelfth  section  of  the  Act  was  not  merely  ancillary  and  advis- 
ory, nor  was  its  object  merely  to  obtain  an  opinion  of  the  Cir- 
cuit Court,  which  would  be  without  operation  upon  the  rights 
of  the  parties.  Any  judgment  would  be  a  final  and  indisput- 
able basis  of  action  as  between  the^Com mission  and  the  de- 
fendant, and  furnish  a  precedent  for  similar  cases.  The  judg- 
ment was  none  the  less  one  of  a  judicial  tribunal,  dealing  with 
questions  judicial  in  their  nature,  and  presented  in  the  custom- 
ary forms  of  judicial  proceedings,  because  its  effect  may  be  to 
aid  an  administrative  or  executive  body  in  the  performance  of 
duties  legally  imposed  upon  it  by  Congress  in  the  case  of  a 
power  granted  by  the  Constitution.  The  issue  made  in  such 
a  case  was  not  one  for  the  determination  of  a  jury,  nor  could 
any  question  of  contempt  arise  until  the  issue  of  law  in  the 
Circuit  Court  was  determined  adversely  to  the  defendants  and 
he  had  refused  to  obey,  not  the  order  of  the  Commission,  but 
the  final  order  of  the  Court.  Such  a  power  to  adjudge  for 
contempt  could  not,  under  our  system  of  government  and  con- 
sistently with  due  process  of  law  be  vested  in  a  subordinate 
and  administrative  or  executive  tribunal  for  final  determination. 
There  was  a  dissenting  opinion  by  Justice  Brewer,  in  which 
( Ihief  Justice  Fuller  and  Justice  Jackson  concurred.  155  U.  S.  1. 
268.  Kelevancy  of  testimony  before  the  Com  mission. — 
In  a  recent  decision,  Interstate  Commerce  Commission  v.  Baird, 


§  269.]  INTERSTATE    COMMERCE    ACT.  311 

194  U.  S.  25  (1904)  4S  L.  Ed.  860  the  Supreme  Court  sustained 
an  application  of  the  Commission,  reversing  the  Circuit  Court, 
for  the  production  of  papers  and  the  giving  of  testimony  in  an 
investigation  pending  before  the  Commission  concerning  an 
alleged  pooling  agreement  in  the  transportation  of  coal.  The 
complaint  filed  before  the  Commission  alleged  that  the  rail- 
road companies  were  natural  competitors  and  had  made  an 
*  agreement  or  combination  in  coal  rates  which  were  unreason- 
able and  unjust.  The  witness  refused  to  produce  contracts  for 
purchasing  coal  by  the  railroads  from  operators  in  Pennsyl- 
vania and  to  answer  certain  questions  as  to  the  sale  and  price 
of  coal,  and  it  was  claimed  that  the  enforced  production  of 
these  papers  and  the  compelling  of  this  testimony  would  be 
violative  of  the  Fourth  and  Fifth  Amendments  to  the  Consti- 
tution. The  Supreme  Court  said  that  while  the  contracts  might 
not  establish  the  pooling  arrangement,  they  would  have  a 
legitimate  bearing  upon  the  inquiry,  and  that  the  testimony 
should  not  be  so  limited  as  to  unreasonably  hamper  the  Com- 
mission by  narrowing  its  field  of  inquiry  beyond  the  reasonable 
requirements  of  the  rights  of  citizens,  as  such  a  course  would 
seriously  impair  its  usefulness  and  prevent  a  realization  of  the 
salutary  purposes  of  Congress.  The  Court  held  also  that  as 
under  the  act  of  1903  the  witnesses  were  given  immunity,  there 
was  no  valid  objections  under  the  Fourth  and  Fifth  Amend- 
ments to  the  Constitution.  It  was  also  ruled  in  this  case  that 
the  contracts,  under  which  the  railroad  companies  engaged  in 
interstate  carriage  of  anthracite  coal  had  acquired  certain  col- 
lieries, whose  proprietors  were  about  to  build  competing  lines 
and  guaranteed  the  stock  and  bonds  issued  in  payment  thereof 
bjT  a  corporation  whose  charter  they  had  purchased  for  that 
purpose,  could  properly  be  produced,  although  they  had  been 
made  with  third  persons  not  parties  to  the  proceeding. 

§  269.  General  powers  of  the  Commission. —  The  limita- 
tions upon  the  power  of  the  Commission  in  the  matter  of  fix- 
ing rates,  or  in  ordering  through  routing,  have  been  already 
considered.  The  Commission  has  no  power  to  compel  car- 
riers to  provide  cars  of  any  special  kind  or  with  any  special 
equipment.  (5  I.  C.  C.  R.  193,  3  Int.  Com.  Eep.  841).  Nor  to 
order  the  granting  of  special  privileges,  such  as  stoppage  in 
transit  and  milling  in   transit  (1  I.  C.  C.  11.  17,   1  Int.  Com. 


312  INTEESTATE    COMMERCE    ACT.  [SECTION    12. 

Rep.  005;  1  I.  C.  C.  R.  20,  1  Int.  Com.  Rep.  22);  nor  to  compel 
extra  allowance  to  passengers  for  baggage.  1  I.  C.  C.  R.  122, 
1  Int.  Com.  Rep.  370.  Neither  has  it  any  power  to  allow 
counsel  or  attorney  fees,  such  as  are  provided  under  section  8. 

1  I.  C.  C.  R.  330,  1  Int.  Com.  Rep.  03S.  Neither  has  it  any 
power  to  enter  judgments  or  decrees.  (5  I.  C.  C.  R.  1»'>,;.  '■'> 
Int.  Com.  Rep.  830);  nor  to  impose  penalties.  Nor  has  it  any 
power  to  make  any  order  over  persons  not  made  parties  to  a 
proceeding  before  the  Oommisssion.  4  I.  C.  C.  R.  195,  3  Int. 
Com.  Rep.  248. 

On  the  other  hand,  the  Commission  is  expressly  given  the 
general  power  to  enforce  the  Act,  to  institute  investigations 
and   summon   witnesses  on   its  own  motion.     3  I.  C.  C.  R.  89, 

2  Int.  Com.  Rep.  40<">.  It  has  a  continuing  jurisdiction  over 
carriage  notwithstanding  the  refusal  of  the  Circuit  Court  to 
enforce  its  order.  0  I.  C.  C.  R,  548.  While  it  cannot  fix  rates 
for  the  future,  it  has  exercised  the  power  of  determining  the 
just  relation  of  rates  as  between  localities  and  kinds  of  traffic 
(T  I.  C.  C.  R.  481),  and  may  find  a  demurrage  charge  or  any 
existing  rate  unreasonable  and  unfair.  As  neither  corn- 
plainant  nor  complaint  is  necessary  to  confer  jurisdiction  on 
the  Commission,  the  repeal  of  a  State  law  creating  a  Railroad 
Commission  does  not  operate  as  a  withdrawal  or  dismissal  of 
a  complaint  which  has  been  filed  by  such  State  Commission, 
as  the  State  Commission  was  only  an  instrument  for  the  trans- 
mission of  the  complaint,  and  the  Interstate  Commerce  Com- 
mission was  fully  empowered  to  proceed  thereafter  on  its  own 
motion.  5  I.  C.  C.  R.  13,  3  Int.  Com.  Rep.  688.  See  infra,  sec- 
tion 13. 

The  comprehensive  and  inquisitorial  power  of  the  Commis- 
sion is  illustrated  by  investigations  from  time  to  time  as  to 
freight  rates  in  different  sections  of  the  country  and  proposed 
increase  of  freight  rates,  as  in  the  uniform  bill  of  lading1 
investigation  made  in  December,  1904  in  the  city  of  Chicago 
at  the  instance  of  the  American  Shippers    Association.     The 

'In  the  annual  appropriation  act  ployees  (infra.  §  372),  and  $30,000  for 

of  1902,  32  Stat.  p.   1107,  there  was  securing  information   as   to  use  of 

included  $2.r>,000  for  special  counsel  railroad  safety  appliances  under  the 

for  the  Commission,  $10,000  arbitra-  Safety  Act  (infra,  g§  332-369). 
tion  of  railroad  differences  with  em- 


§  209.]  INTERSTATE    COMMERCE    ACT.  313 

i 

administrative  duties  of  the  Commission  are  also  extensive 
under  the  safety  appliance  laws.  See  infra,  §  354.  The  serv- 
ices of  the  Commission  have  also  been  invoked  in  adjusting 
controversies  between  shippers  and  carriers,  as  in  the  invest- 
igation of  the  differentials  recognized  by  the  carriers  in  their 
rates  to  the  different  cities  of  the  eastern  seaboard.  See  Re- 
port for  1904,  p.  23. 

The  Commission  in  taking  testimony  before  itself,  whether 
in  original  investigations  or  in  the  hearing  of  complaints,  is 
empowered  to  summon  witnesses  or  to  produce  documentary 
evidence  from  any  place  in  the  United  States  to  any  designated 
place  of  hearing.  The  power  of  the  Commission  in  this  respect 
js  greater  than  the  power  of  the  courts  of  the  United  States, 
as  witnesses  living  out  of  the  district  are  not  required  to  at- 
tend court  at  a  greater  distance  than  a  hundred  miles,  nor  to 
attend  the  taking  of  depositions  under  a  Commission  at  any 
place  out  of  the  count}',  nor  more  than  forty  miles  from  the 
place  of  their  residence.  Section  870  R.  S.  U.  S.  This  power 
however  has  been  rarely  used,  as  the  Commission  has  arranged 
its  hearings  as  authorized  bj'  the  Act  (section  19)  in  different 
parts  of  the  county  convenient  for  the  witnesses. 


314  interstate  commerce  act.  [section  13. 

Section  13. 

Page. 
£  JTO.     Complaints  to  Commission— How  and  by  whom  made— How 

served  upon  carriers. 314 

271.  Procedure  before  Commission — Parties  311 

272.  Pleadings  and  proofs .    815 

273.  Burden  of  proof 310 

274.  Production  of  books  and  papers. 317 

275.  The  rulings  of  the  Commission  as  precedents 318 

§  270.  Complaints  to  Commission — How  and  by  whom 
made  — How  served  upon  carriers.—  Sec.  13.  That  any  per- 
son, firm,  corporation,  or  association,  or  any  mercantile,  agri- 
cultural, or  manufacturing  society,  or  any  body  politic  or  mu- 
nicipal organization  complaining  of  anything  done  or  omitted 
to  be  done  by  any  common  carrier  subject  to  the  provisions  of 
this  act  in  contravention  of  the  provisions  thereof,  may  apply 
.to  said  Commission  by  petition,  which  shall  briefly  state  the 
facts:  whereupon  a  statement  of  the  charges  thus  made  shall 
be  forwarded  by  the  Commission  to  such  common  carrier,  who 
shall  be  called  upon  to  satisfy  the  complaint  or  to  answer  the 
same  in  writing  within  a  reasonable  time,  to  be  specified  by 
the  Commission.  If  such  common  carrier,  within  the  time 
specified,  shall  make  reparation  for  the  injury  alleged  to  have 
been  done,  said  carrier  shall  be  relieved  of  liability  to  the  com- 
plainant only  for  the  particular  violation  of  law  thus  com- 
plained of.  If  such  carrier  shall  not  satisfy  the  complaint 
within  the  time  specified,  or  there  shall  appear  to  be  any  rea- 
sonable ground  for  investigating  said  complaint,  it  shall  be  the 
duty  of  the  Commission  to  investigate  the  matters  complained 
of  in  such  manner  and  by  such  means  as  it  shall  deem  proper. 

Said  Commission  shall  in  like  manner  investigate  any  com- 
plaint forwarded  by  the  railroad  commissioner  or  railroad 
commission  of  any  state  or  territory,  at  the  request  of  such 
commissioner  or  commission,  and  may  institute  any  injury  on 
its  own  motion  in  the  same  manner  and  to  the  same  effect  as 
though  complaint  had  been  made. 

No  complaint  shall  at  any  time  be  dismissed  because  of  the 
absence  of  direct  damage  to  the  complainant. 

§  271.  Procedure  before  Commission  —  Parties. — -This 
section  regulating  procedure  before  the  Commission  has  been 
liberally  construed  by  the  Commission  in  furtherance  of  the 
obvious  purpose  of  securing  a  summary  investigation  and  with 
only  so  much  formality  as  was  essential  to  justice.  Dilatory 
proceedings  are  considered  objectionable  and  a  single  speedy 
hearing  is  desired  in  every  case.  1  I.  C.  C.  R.  223,  1  Int.  Com. 
Rep.  410. 


§  272.]  INTERSTATE    COMMERCE    ACT.  315 

Any  person  or  association  is  entitled  to  complain  either  for 
himself  or  for  any  community  in  which  he  is  interested.  Many 
complaints  have  been  made  before  the  Commission  by  local 
trade  organizations  interested  in  the  locality  or  in  specific  in- 
dustries. Thus  the  Boston  Fruit  &  Produce  Exchange  was 
held  a  mercantile  society  within  the  meaning  of  the  section 
and  could  maintain  a  proceeding  without  showing  special  dam- 
age to  itself  as  a  society.  4  I.  C.  C.  R.  004,  3  Int.  Com.  Hep. 
493.  The  Chicago  Live  Stock  Exchange,  whose  members  were 
engaged  in  the  sale  of  live  stock  on  commission  in  Chicago, 
was  held  entitled  to  maintain  a  proceeding  to  correct  an  un- 
reasonable freight  rate  upon  live  stock  from  various  points 
to  Chicago,  notwithstanding  certain  by-laws  and  proceedings 
of  the  association  were  claimed  to  be  in  violation  of  the  Anti- 
Trust  law.  7  I.  C.  C.  R.  513.  It  is  immaterial  that  such# 
trade  organizations  are  unincorporated.  See  also  10  I.  C.  C. 
R.  428. 

The  prior  leave  of  court  is  not  necessary  to  entitle  a  shipper 
to  proceed  against  a  railroad  in  the  hands  of  a  receiver.  0  I. 
C.  C.  R.  520.  When  one  makes  a  complaint  under  the  Act  to 
Regulate  Commerce  and  sets  up  a  personal  grievance  which  he 
fails  to  prove  before  the  Commission,  if  a  violation  of  law  by 
the  defendant  appears,  the  Commission  can  take  the  necessary 
steps  to  bring  the  violation  of  the  law  to  an  end.  1  I.  C.  C. 
R.  208,  1  Int.  Com.  Rep.  611. 

As  to  parties  defendant,  it  was  held  by  the  Supreme  Court 
in  Texas  Pacific  R.  Co.  v.  Interstate  Commerce  Commission, 
supra,  that  the  owner  of  the  portion  of  line  over  which  through 
freight  is  carried  is  a  proper  but  not  a  necessary  party  in  a 
proceeding  concerning  the  alleged  discrimination  between  in- 
land and  import  rates.  The  Commission  however  has  exer- 
cised the  right  to  bring  in  all  parties  interested  in  a  case.  4 
I.  C.  C.  R.  276,  3  Int.  Com.  Rep.  282,  5  I.  C.  C.  R.  571,  4  Int. 
Com.  Rep.  230. 

§  272.  Pleadings  and  proofs.— A  co'inplaint  concerning 
classification  of  rates  should  not  be  made  against  the  Classifica- 
tion Committee  or  Rate  Committee,  but  against  the  carriers 
who  were  represented  by  such  committees,  and  the  complaint 
should  point  them  out  by  name.  4  I.  C.  C.  R.  270,  3  Int.  Com. 
Rep.  282.  The  Commission  has  early  announced  and  it  has  al- 


316  INTERSTATE    COMMERCE    ACT.  [SECTION    13. 

ways  insisted  that  it  would  not  express  opi  nions  on  abstract 
questions,  nor  on  questions  presented  on  exparte  statements  of 
facts,  nor  on  questions  of  the  statute  presented  for  its  advice, 
but  without  any  controversy  pending  before  it  on  complaint 
of  violation  of  law.  1  I.  G.  C.  R.  S,  1  Int.  Com.  Rep.  IS.  The 
Commission  will  not  consider  the  claim  of  a  party  for  injury 
to  goods  resulting  from  delay,  detention,  etc.,  or  from  any 
cause  not  attributable  to  any  violation  of  the  provision  of  the 
act  to  regulate  commerce.  6  I.  C.  C.  R.  85.  Where  repara- 
tion is  asked  to  the  extent  of  alleged  excessive  charges,  rea- 
sonable time  is  allowed  for  making  proof  of  the  amounts  paid 
when  the  evidence  adduced  shows  excessive  charges  without 
disclosing  the  amount  of  the  excess.  6  I.  C.  C.  R.  335.  The 
procedure  is  in  the  simplest  form  consistent  with  reasonable 
certainty.  ^So  replication  is  required.  When  the  facts  are 
not  agreed  upon,  deposition  may  be  taken  upon  notice  or  the 
hearing  entered  upon  immediately  after  answer.  Assignments 
of  hearing  are  made  upon  the  request  of  either  party  and  par- 
ties are  heard  orally  or  on  briefs,  as  they  may  prefer.  See  1 
I.  C.  C.  R.  223,  1  Int.  Com.  Rep.  408. 

When  a  carrier  fails  to  answer  the  complaint  filed,  the  Com- 
mission takes  such  proof  of  the  facts  as  may  be  deemed  proper 
and  reasonable,  and  makes  order  therein  accordingly.  5  I.  C. 
('.  R.  663,  4  Int.  Com.  Rep.  318. 

§  273.  Burden  of  proof. —  The  question  of  burden  of  proof 
has  been  construed  in  the  matter  of  reasonableness  of  rates, 
section  1,  discriminations,  section  2,  and  unjust  preferences, 
section  3.  In  general  terms  it  may  be  said  that  the  Commis- 
sion adopts  the  rules  in  regard  to  the  burden  of  proof  and  the 
shifting  of  the  weight  of  testimony  in  accordance  with  the 
established  rules  of  courts  of  justice  liberally  and  not  tech- 
nically administered.  Thus  the  burden  is  upon  the  party  mak- 
ing the  complaint,  8  I.  C.  C.  R.  501,  and  relief  will  not  be 
granted  without  proof.  1  I.  C.  C.  R.  185, 1  Int.  Com.  Rep.  627. 
But  when  the  fact  of  a  greater  aggregate  charge  for  a  short  or 
long  haul  on  the  same  line  is  established,  the  burden  is  upon 
the  carrier  to  justify  such  excess.  4  I.  C.  C.  R.  104.  But  where 
the  carrier  makes  application  for  relief  under  the  fourth  sec- 
tion, he  assumes  the  burden  in  the  first  instance.  So  where 
there  is  a  departure  from  equal  rates  on  several  branches  of 


§  274.]  INTERSTATE    COMMERCE    ACT.  317 

a  road,  the  carrier  is  called  upon  to  justify.     2  I  C.  C.  R.  004, 

2  Int.  Com.  Eep.  431.  8  I.  C.  C.  R.  93  ruled  that  the  bur- 
den is  upon  the  carrier  in  all  cases,  where  the  departure  from 
the  rule  of  the  law  is  made,  to  show  clearly  that  his  departure 
is  justified,  citing  Missouri  Pacific  Ry.  Co.  v.  Texas  &  Pacific 
Ry.  Co.,  31  Fed.  Rep.  S02.  When  the  facts  justifying  an  apparent 
disparity  in  rates  are  peculiarly  within  the  knowledge  of  the  car- 
rier (61.  C.  C.  R.  1),  the  burden  is  on  him;  thus  the  carrier  must 
justify  the  disparity  between  rates  on  grain  and  grain  products. 

3  I.  C.  C.  R.  2.32,  2  Int.  Com.  Rep.  004.  The  informal  character  of 
the  procedure  before  the  Commission  is  illustrated  by  the  case 
(9  I.  C.  C.R.  002)  where  the  general  freight  agent  of  the  Texas 
&  Pacific  Railroad  Company  referred  to  the  Commission  a 
claim  of  a  shipper  for  carload  rating  on  a  mixed  carload  of  lem- 
ons and  pineapples,  it  appearing  that  the  tariff  provided  for  a 
mixed  carload  of  lemons  and  bananas  and  pineapples  and  ba- 
nanas, but  not  for  a  mixed  carload  of  lemons  and  pineapples, 
the  general  freight  agent  expressing  his  belief  that  the  claim 
was  equitable.  The  Commission  said  that  a  matter  submitted 
in  this  way  should  be  treated  as  a  complaint  and  answer;  the 
railroad  company  should  make  answer  and  make  reparation  to 
the  complainant  for  the  rate  above  the  carload  rate. 

When  an  important  question  is  raised  by  the  pleadings  in  a 
case,  the  determination  of  which  will  affect  others  quite  as 
much  as  the  parties  before  the  Commission,  but  the  parties  give 
their  attention  almost  exclusively  to  other  questions,  and 
neither  by  the  evidence  nor  in  argument  supply  the  Commis- 
sion with  the  information  to  enable  it  to  be  understanding^ 
determined,  the  Commission  will  decline  to  decide  it,  and  leave 
the  parties  to  bring  it  forward  again  as  they  may  be  advised. 
1  I.  C.  C.  R.  503,  1  Int.  Com.  Rep.  722. 

§  274.  Production  of  books  and  papers. —  In  3  I.  C.  C.  R. 
186,  2  Int.  Cora.  Rep.  5S4,  the  Commission  suggested  the  modes 
of  procedure  b}7  which  the  inconvenience  to  defendant  carriers 
of  producing  books  where  many  entries  were  involved,  might 
be  avoided  by  petitioner,  as  by  requiring  statements  of  specific 
charges  and  facilities  during  specified  period,  or  taking  deposi- 
tions by  consent  in  advance  of  hearing. 

As  to  proceedings  for  taking  testimony  and  the  production 
of  books  and  papers,  see  this  case,  in  which  the  Commission 


318  INTERSTATE    COMMERCE    ACT.  [SECTION   13. 

said  that  there  was  a  very  manifest  difference  between  order- 
ing the  production  of  books  and  papers  of  carriers  directly  in- 
terested and  those  of  other  parties,  strangers  to  the  proceed- 
in  g.  It  was  said  in  this  case  that  the  books  of  defendant 
carrier  as  to  the  rates  charged,  the  facilities  furnished  and  the 
general  movements  of  freight  were  in  the  nature  of  semi-public 
records,  and  statements  shonld  be  made  therefrom  on  request 
as  promptly  as  practicable.  (See  this  case  for  what  is  required 
for  an  order  for  the  production  of  books  and  papers.) 

§  'J?5.  The  ratings  of  the  Commission  as  precedents. — 
The  rulings  of  the  Commission  are  based  so  distinctly  upon 
the  special  facts  of  the  cases  submitted  that  the  doctrine  of 
judicial  precedent  has  only  a  limited  application.  Thus  in  de- 
ciding a  case  against  one  or  more  carriers  charged  with  mak- 
ing rates  which  are  unjustly  discriminating  in  a  certain  line  of 
traffic,  the  decision  may  not  apply  at  all  to  the  rates  in  other 
sections  where  facts  may  be  altogether  different.  21.  C.  C.  R. 
365,  -2  Int.  Com.  Rep.  245.  One  case  can  seldom  be  an  exact 
precedent  for  another,  for  each  traffic  situation  presents  points 
of  difference,  and  each  complaint  must  be  judged  upon  its  own 
peculiar  facts.     8  I.  C.  C.  It.  409. 

A  rate  may  be  unreasonable  at  one  time,  and  through 
changed  conditions  may  become  reasonable  at  another  time, 
even  before  the  conclusion  of  the  litigation  as  to  the  reason- 
ability  of  the  rate.  See  conclusion  of  opinion  in  Nebraska 
Rate  case,  169  U.  S.  1.  c.  p.  550. 


}§  276,  277.]  INTERSTATE    COMMERCE    ACT.  319 


Section  14. 

Page 
§  276.     Commission  must  make  report  of  investigations 319 

277.  The  report  of  findings  of  fact  made  prima  facie  evidence 319 

278.  The  Commission  as  a  general  referee   320 

279.  Claims  for  reparation  before  the  Commission 321 

280.  Reports  of  decisions  322 

§  276.    Commission  must  make  report  of  investigation. 

Sec.  14.  (As  amended  March  8,  1889.)  That  whenever *an in- 
vestigation shall  be  made  by  said  Commission,  it  shall  be  its 
duty  to  make  a  report  in  writing  in  respect  thereto,  which 
shall  include  the  findings  of  fact  upon  which  the  conclu- 
sions of  the  Commission  are  based,  together  with  its  recom- 
mendation as  to  what  reparation,  if  any,  should  be  made  by 
the  common  carrier  to  any  party  or  parties  who  may  be  found 
to  have  been  injured;  and  such  findings  so  made  shall  there- 
after, in  all  judicial  proceedings,  be  deemed  prima  facie  evi- 
dence as  to  each  and  every  fact  found. 

All  reports  of  investigations  made  by  the  Commission  shall 
be  entered  of  record,  and  a  copy  thereof  shall  be  furnished  to 
the  party  who  may  have  complained,  and  to  any  common  car- 
rier that  may  have  been  complained  of. 

The  Commission  may  provide  for  the  publication  of  its  re- 
ports and  decisions  in  such  form  and  manner  as  may  be  best 
adapted  for  public  information  and  use,  and  such  authorized 
publications  shall  be  competent  evidence  of  the  reports  and 
decisions  of  the  Commission  therein  contained,  in  all  courts  of 
the  United  States,  and  of  the  several  States,  without  any  fur- 
ther proof  or  authentication  thereof.  The  Commission  may 
also  cause  to  be  printed  for  early  distribution  its  annual  re- 
ports. 

§  277.  The  report  of  findings  of  fact  made  prima  facie 
evidence. — It  was  said  by  Justice  Jackson  in  the  Kentucky 
and  Indiana  Bridge  case,  supra,  37  Fed.  Rep.  567,  the  first  im- 
portant decision  under  the  Act,  that  in  respect  to  interstate 
commerce  matters  covered  by  the  Act,  the  Commission  may 
be  regarded  as  the  general  referee  of  each  and  every  Circuit 
Court  of  the  United  States  upon  which  the  jurisdiction  is  con- 
ferred of  enforcing  the  rights,  duties  and  obligations  recog- 
nized and  enforced  by  the  Act.  The  functions  of  the  Com- 
mission are  those  of  referees  or  special  commissioners  ap- 
pointed to  make  preliminary  investigations  of  and  report  upon 
matters  for  subsequent   judicial  examination  and  determina- 


320 


INTERSTATE    COMMERCE    ACT.  [SECTION    14. 


tion.  The  Supreme  Court  has  said  in  several  cases  that  the 
proper  course  of  procedure  is  for  all  the  facts  to  be  submitted 
to  the  Commission,  and  it  has  refused  to  assume  to  exert  its 
original  judgment  on  the  facts,  as  under  the  statute  the  courts 
are  entitled,  before  approaching  the  facts,  to  the  aid  that  must 
necessarily  be  afforded  by  the  previous  enlightened  judgment 
of  the  Commission  upon  such  subjects.  See  East  Tennessee 
etc.  Kv.  Co.  v.  Interstate  Commerce  Commission,  181  U.  S.  1, 
1  c.  27,  45  L.  Ed.  719,  729,  and  cases  cited.  In  L.  &  X.  R.  Co. 
v.  Behlraer,  175  U.  S.  c.4\  44  L.  Ed.  309,  the  Court  said  that 
the  Act  attributes prium  facie  effect  to  findings  of  fact  made 
by  the  Commission,  and  that  body  from  the  nature  of  its  func- 
tion and  the  duties  imposed  upon  it  by  the  statute  is  peculiarly 
competent  to  pass  upon  questions  of  fact  of  the  character  here 
arising.  The  court  therefore  in  several  cases,  where  it  ad- 
judged that  the  Commission  had  erred  in  the  mistaken  view 
of  the  law,  directed  the  dismissal  of  the  proceedings  in  court 
without  prejudice  to  the  right  of  the  Commission  to  further 
investigate  the  facts.     See  supra,  and  cases  cited. 

§  278.  The  Commission  as  a  general  referee. — While  the 
Commission  is  thus  a  general  referee,  its  position  is  somewhat 
anomalous  in  the  law,  in  that  it  not  only  acts  in  a  quasi  judi- 
cial capacity  as  a  referee,  but  it  may  also  institute  proceedings 
in  its  name  in  the  courts  and  thus  be  a  prosecutor  in  the  same 
cases  wherein  it  has  acted  as  judge. 

AVhile  there  is  no  requirement  in  the  Act  that  carriers  com- 
plained of  shall  produce  all  of  their  evidence  before  the  Com- 
mission, and  in  numerous  cases  parties  have  reserved  such 
evidence  until  hearing  was  had  in  the  courts  on  proceedings 
instituted  by  the  Commission  to  enforce  their  orders,  the 
Supreme  Court  has  said  that  this  was  not  the  proper  procedure 
i  L62  V.  S.  1.  c.  196,  40  L.  Ed.  935),  but  that  all  the  testimony 
should  be  submitted  to  the  Commission  for  their  determina- 
tion of  the  questions  of  fact.  The  Commission  has  ruled  that 
it  is  not  required  to  report  the  details  of  evidence,  but  only  its 
findings  of  fact.  See  1  I.  C.  C.  E.  490,  1  Int.  Com.  Rep.  773, 
673,  where  it  said  that  the  report  and  findings  of  the  Commis- 
sion upon  evidence  related  only  to  the  ascertainment  and  pre- 
sentation  of  all  the  material  facts  necessary  to  clearly  and 
justly  present  the  merits  of  the  controversy,  and  the  Commis- 


§  279.]  INTERSTATE    COMMERCE    ACT.  321 

sion  therefore  does  not  report  evidence  which  is  only  cumula- 
tive, or  which  is  immaterial  or  irrelevant,  or  show  details  of 
evidence  all  embraced  in  the  substantial  facts  stated  upon 
which  the  findings  and  conclusions  of  the  Commission  are  made. 
As  to  the  effect  of  the  Commission's  findings  upon  the  ques- 
tions of  reparation  in  view  of  the  constitutional  guaranty  of 
trial  by  jury,  see  infra,  sections  15  and  16. 

§  279.  Claims  for  reparation  before  the  Commission. — 
While  the  Commission  cannot  determine  rates  for  the  future,  in 
order  to  determine  a  claim  of  reparation  for  the  charge  of  an 
unreasonable  rate,  it  must  decide  what  rate  should  have  been 
charged,  that  is,  what  is  a  reasonable  rate,  in  order  to  deter- 
mine the  amount  of  damage  to  which  the  party  is  entitled. 
As  to  the  procedure  of  the  Commission  in  claims  of  repara- 
tion, it  was  held  that  the  complainant  must  make  proof  of  his 
damage  (8  I.  C.  C.  It.  158);  that  all  the  carriers  on  the 
route  need  not  be  before  the  Commission  (6  I.  C.  C.  R.  378),  and 
that  speculative  damages  will  not  be  allowed.  5  I.  C.  C.  R- 
97,  3  Int.  Com.  Rep.  740.  Xor  will  the  Commission  consider 
claims  not  arising  out  of  the  duties  imposed  by  the  Act.  4  I. 
C.  C.  R.  265,  3  Int.  Com.  Rep.  278.  It  is  sufficient  for 
the  complainant  to  consult  the  published  schedule  of  charges, 
and  he  is  entitled  to  recover  thereon  the  excess  over  such 
schedules  charged  him.  7  I.  C.  C.  R.  255.  See  also  as  to 
conclusions  of  Commission  as  to  its  jurisdictions  in  mat- 
ter of  awarding  reparation.  5  I.  C.  C.  R,  84,  3  Int.  Com. 
Rep.  711. 

The  subject  of  reparation  was  discussed  by  the  Commission 
in  the  case  of  the  Independent  Refiners  Association,  6  I.  C. 
C.  R.  378,  7  I.  C.  C.  R.  513.  In  this  case  claims  of  reparation 
were  allowed  to  be  filed  in  the  same  proceeding  by  the  in- 
dividual shippers  who  were  members  of  the  complaining  asso- 
ciation. The  Circuit  Court  however  for  the  western  district 
of  Pennsylvania,  82  Fed.  Rep.  192,  refused  to  enforce  this  or- 
der, holding  that  each  complainant  had  a  plain,  adequate  and 
complete  remedy  at  law.  Thereafter  in  the  case  of  the  Cattle 
Raisers  Association  of  Texas,  10  I.  C.  C.  R.  83,  the  Commis- 
sion held  that  in  view  of  the  unsettled  state  of  the  law  as  to 
the  recovery  of  claims  of  reparation,  the  members  of  the  com- 
plaining association  should  file  intervening  petitions,  each  for 

21 


322  INTERSTATE    COMMERCE    ACT.  [SECTION    14. 

his  own  demand.  The  suits  brought  in  the  Circuit  Court  (W. 
Dist.  of  Penn.)  for  recovery  of  the  amounts  allowed  the  Com- 
mission on  the  claims  of  members  of  the  Independent  Refiners 
Association  are  still  (1904)  pending  undetermined. 

§  280.  Reports  of  decisions. —  The  provision  for  the  pub- 
lication of  the  reports  of  the  Commission  was  added  to  the 
section  by  the  amendment  of  1889.  There  were  originally 
two  series  of  reports  containing  the  opinions  of  the  Interstate 
Commerce  Commission.  The  Interstate  Commerce  Reports, 
cited  as  "Int.  Com.  Rep."  were  published  by  the  Lawyer's 
Co-Operative  Publishing  Company  of  Rochester,  New  York, 
and  included  not  only  the  reports  of  the  Commission  but  also 
the  proceedings  of  the  Commission,  and  the  reports  of  de- 
cisions of  the  court  on  Interstate  Commerce  questions.  The 
Interstate  Commerce  Commission  Reports,  cited  as  "I.  C.  C. 
R.,"  were  first  published  by  L.  K.  Strouse  &  Co.  of  New 
York.  The  Lawyers'  Co-Operative  Publishing  Company  pur- 
chased the  other  series,  and  now  the  official  and  only  edition 
is  that  published  by  the  Lawyers'  Co-Operative  Publishing 
Company,  reporting  only  the  decisions  of  the  Interstate  Com- 
merce Commission,  with  an  occasional  appendix  of  reports 
of  other  interstate  commerce  cases.  Advance  numbers  of 
volume  10  are  now  (1905)  in  the  course  of  publication.  The 
reports  now  published  are  cited  as  I.  C.  C.  R.  The  five  vol- 
umes of  the  discontinued  (Strouse)  series  contain  the  same 
cases  included  in  volumes  1  to  4  of  the  Co-Operative  series. 


§§  281,  282.]  INTERSTATE    COMMERCE    ACT.  323 


Section  15. 

§  281.     Notice  to  common  carrier  to  cease  from  violation  of  act. 
282.     Notice  to  the  carrier  jurisdictional. 

§  281.  Notice  to  common  carrier  to  cease  from  violation 
of  act. — Sec.  15.  That  if  in  any  case  in  which  an  investiga- 
tion shall  be  made  by  said  Commission  it  shall  be  made  to  ap- 
pear to  the  satisfaction  of  the  Commission,  either  by  the  testi- 
mony of  witnesses  or  other  evidence,  that  anything  has  been 
done  or  omitted  to  be  done  in  violation  of  the  provisionsof  this 
act,  or  of  any  law  cognizable  by  said  Commission,  by  any 
common  carrier,  or  that  any  injury  or  damage  has  been  sus- 
tained by  the  party  or  parties  complaining,  or  by  other  parties 
aggrieved  in  consequence  of  any  such  violation,  it  shall  be  the 
duty  of  the  Commission  to  forthwith  cause  a  copy  of  its  report 
in  respect  thereto  to  be  delivered  to  such  common  carrier,  to- 
gether with  a  notice  to  said  common  carrier  to  cease  and  de- 
sist from  such  violation,  or  to  make  reparation  for  the  injury 
so  found  to  have  been  done,  or  both,  within  a  reasonable  time, 
to  be  specified  by  the  Commission;  and  if,  within  the  time 
specified,  it  shall  be  made  to  appear  to  the  Commission  that 
such  common  carrier  had  ceased  from  such  violation  of  law, 
and  has  made  reparation  for  the  injury  found  to  have  been 
done,  in  compliance  with  the  report  and  notice  of  the  Commis- 
sion, or  to  the  satisfaction  of  the  party  complaining,  a  state- 
ment to  that  effect  shall  be  entered  of  record  by  the  Commis- 
sion, and  the  said  common  carrier  shall  thereupon  be  relieved 
from  the  further  liability  or  penalty  for  such  particular  viola- 
tion of  law. 

§  282.  Notice  to  the  carrier  jurisdictional. — This  sec- 
tion is  really  supplementary  to  the  preceding,  an  that  it  pro- 
vides for  notification  to  the  carrier  of  the  finding  of  the  Com- 
mission, when  such  finding  is  against  the  carrier.  As  seen 
before,  it  is  provided  by  section  9  that  a  party  complaining 
has  the  election  of  proceeding  under  sections  8  and  9  directly 
in  court,  or  of  proceeding  before  the  Commission.  If  the  find- 
ing of  the  Commission  is  against  the  shipper,  the  complaint  is 
dismissed,  and  in  such  case  the  party  is  barred  from  proceed- 
ing in  court  on  the  same  complaint.  The  Commission  has  no 
power  to  enforce  its  findings  and  the  succeeding  section  pro- 
vides for  the  requisite  legal  procedure  for  such  enforcement. 
Notification  to  the  carrier  is  therefore  a  jurisdictional  step  in 
such  procedure.     See  7  I.  C.  C.  R.  286. 


324  INTERSTATE    COMMERCE    ACT.  [SECTION    16. 


Section  16. 

Tage 

§  2S3.  Petition  to  United  States  courts  in  cases  of  disobedience  to 

order  of  Commission 321 

384     The  saving  of  the  right  of  trial  by  jury 326 

285.     Limitations  of  actions  for  reparation  327 

28  >.     Jurisdiction  of  the  Circuit  Court 328 

287.     Proper  and  necessary  parties  to  procedure 328 

3S3.     Parties  defendant  321) 

289.  Prima  facie  effect  of  the  report 329 

290.  The  revisory  power  of  the  court 330 

291.  Injunction 331 

292.  Eight  of  appeal 331 

293.  Supersedeas  on  appeal 331 

291.  The  provision  as  to  supersedeas  applies  only  to  appeals  from 

Circuit  Courts 332 

§  *Js3.  Petition  to  United  States  courts  in  cases  of  diso- 
bedience to  order  of  Commission. —  Sec.  16.  (As  amended 
March  .'.  1889.)  That  whenever  any  common  carrier,  as  defined 
in  and  subject  to  the  provisions  of  this  act,  shall  violate,  or 
refuse  or  neglect  to  obey  or  perform  any  lawful  order  or  re- 
quirement of  the  Commission  created  by  this  act,  not  founded 
upon  a  controversy  requiring  a  trial  by  jury,  as  provided  by 
the  seventh  amendment  to  the  Constitution  of  the  United 
States,  it  shall  be  lawful  for  the  Commission  or  for  any  com- 
pany or  person  interested  in  such  order  or  requirement,  to  ap- 
ply in  a  summary  way,  by  petition,  to  the  circuit  court  of  the 
I'nited  States  sitting  in  equity  in  the  judicial  district  in  which 
the  common  carrier  complained  of  has  its  principal  office,  or 
in  which  the  violation  or  disobedience  of  such  order  or  require- 
ment shall  happen,  alleging  such  violation  or  disobedience,  as 
the  case  may  be;  and  the  said  court  shall  have  power  to  hear 
and  determine  the  matter,  on  such  short  notice  to  the  common 
carrier  complained  of  as  the  court  shall  deem  reasonable;  and 
such  notice  may  be  served  on  such  common  carrier,  his  or  its 
officers,  agents,  or  servants  in  such  manner  as  the  court  shall 
direct;  and  said  court  shall  proceed  to  hear  and  determine  the 
matter  speedily  as  a  court  of  equity,  and  without  the  formal 
pleadings  and  proceedings  applicable  to  ordinary  suits  in 
equity,  but  in  such  manner  as  to  do  justice  in  the  premises; 
and  to  this  end  such  court  shall  have  power,  if  it  think  fit,  to 
direct  and  prosecute  in  such  mode  and  by  such  persons  as  it 
may  appoint,  all  such  inquiries  as  the  court  may  think  need- 
ful to  enable  it  to  form  a  just  judgment  in  the  matter  of  such 
petition;  and  on  such  hearing  the  findings  of  fact  in  the  re- 
port of  said  Commission  shall  be  prima  facie  evidence  of  the 


§  2S3.]  INTERSTATE    COMMERCE    ACT.  325 

matters  therein  stated ;  and  if  it  be  made  to  appear  to  such  court, 
on  such  hearing  or  on  report  of  any  such  person  or  persons, 
that  the  lawful  order  or  requirement  of  said  Commission  drawn 
in  question  has  been  violated  or  disobeyed,  it  shall  be  lawful 
for  such  court  to  issue  a  writ  of  injunction  or  other  proper 
process,  mandatory  or  otherwise,  to  restrain  such  common 
carrier  from  further  continuing  such  violation  or  disobedience 
of  such  order  or  requirement  of  said  Commission,  and  enjoin- 
ing obedience  to  the  same;  and  in  case  of  any  disobedience  of 
any  such  writ  of  in  junction  or  other  proper  process,  mandatorv 
or  otherwise,  it  shall  be  lawful  for  such  court  to  issue  writs  of 
attachment,  or  any  other  process  of  said  court  incident  or  ap- 
plicable to  writs  of  injunction  or  other  proper  process,  manda- 
tory or  otherwise,  against  such  common  carrier,  and  if  a  cor- 
poration, against  one  or  more  of  the  directors,  officers,  or 
agents  of  the  same,  or  against  any  owner,  lessee,  trustee, 
receiver,  or  other  person  failing  to  obey  such  writ  of  injunc- 
tion, or  other  proper  process,  mandatory  or  otherwise;  and 
said  court  may,  if  it  shall  think  fit,  make  an  order  directing 
such  common  carrier  or  other  person  so  disobeying  such  writ 
of  injunction  or  other  proper  process,  mandatory  or  otherwise, 
to  pay  such  sum  of  money,  not  exceeding  for  each  carrier  or 
person  in  default  the  sum  of  five  hundred  dollars  for  everv 
day,  after  a  day  to  be  named  in  the  order,  that  such  carrier  or 
other  person  shall  fail  to  obey  such  injunction  or  other  proper 
process,  mandatory  or  otherwise;  and  such  moneys  shall  be 
payable  as  the  court  shall  direct,  either  to  the  party  complain- 
ing or  into  court  to  abide  the  ultimate  decision  of  the  court, 
or  into  the  treasurj^;  and  payment  thereof  ma}',  without  pre- 
judice to  any  other  mode  of  recovering  the  same,  be  enforced 
by  attachment  or  order  in  the  nature  of  a  writ  of  execution, 
in  like  manner  as  if  the  same  had  been  recovered  by  a  final 
decree  in  personam  in  such  court.  When  the  subject  in  dis- 
pute shall  be  of  the  value  of  two  thousand  dollars  or  more, 
either  party  to  such  proceeding  before  said  court  may  appeal 
to  the  Supreme  Court  of  the  United  States,  under  the  same 
regulations  now  provided  by  law  in  respect  of  security  for  such 
appeal;  but  such  appeal  shall  not  operate  to  stay  or  supersede 
the  order  of  the  court  or  the  execution  of  any  writ  or  process 
thereon ;  and  such  court  may,  in  every  such  matter,  order  the 
payment  of  such  costs  and  counsel  fees  as  shall  be  deemed 
reasonable.  Whenever  any  such  petition  shall  be  filed  or  pre- 
sented by  the  Commission  it  shall  be  the  duty  of  the  district 
attorney,  under  the  direction  of  the  Attorney-General  of  the 
United  States,  to  prosecute  the  same;  and  the  costs  and  ex- 
penses of  such^prosecution  shall  be  paid  out  of  the  appropria- 
tion for  the  expenses  of  the  courts  of  the  United  States. 

If  the  matters  involved  in  any  such  order  or  requirement  of 
said  Commission  are  founded  upon  a  controversy  requiring  a 


326  INTERSTATE    COMMERCE    ACT.  [SECTION    16. 

trial  by  jury,  as  provided  by  the  seventh  amendment  to  the 
Constitution  of  the  United  States,  and  any  such  common  car- 
rier shall  violate  or  refuse  or  neglect  to  obey  or  perform  the 
same,  after  notice  given  by  said  Commission  as  provided  in  the 
fifteenth  section  of  this  act,  it  shall  be  lawful  for  any  company 
or  person  interested  in  such  order  or  requirement  to  apply  in 
a  summary  way  by  petition  to  the  circuit  court  of  the  United 
States  sitting  as  a  court  of  law  in  the  judicial  district  in  which 
the  carrier  complained  of  has  its  principal  office,  or  in  which 
the  violation  or  disobedience  of  such  order  or  requirement 
shall  happen,  alleging  such  violation  or  disobedience  as  the 
case  may  be;  and  said  court  shall  by  its  order  then  fix  a  time 
and  place  for  the  trial  of  said  cause,  which  shall  not  be  less 
than  twentv  nor  more  than  forty  days  from  the  time  said  order 
is  made,  and  it  shall  be  the  duty  of  the  marshal  of  the  district 
in  which  said  proceeding  is  pending  to  forthwith  serve  a  copy 
of  said  petition,  and  of  said  order,  upon  each  of  the  defend- 
ants, and  it  shall  be  the  duty  of  the  defendants  to  file  their 
answers  to  said  petition  within  ten  days  after  the  service  of 
the  same  upon  them  as  aforesaid.  At  the  trial  the  findings  of 
fact  of  said  Commission  as  set  forth  in  its  report  shall  be  prima 
facie  evidence  of  the  matters  therein  stated,  and  if  either  party 
shall  demand  a  jury  or  shall  omit  to  waive  a  jury  the  court 
shall,  by  its  order,  direct  the  marshal  forthwith  to  summon  a 
jury  to  "try  the  cause;  but  if  all  the  parties  shall  waive  a  jury 
in  writing  then  the  court  shall  try  the  issues  in  said  cause  and 
render  its  judgment  thereon.  If  the  subject  in  dispute  shall 
be  of  the  value  of  two  thousand  dollars  or  more  either  party 
may  appeal  to  the  Supreme  Court  of  the  United  States  under 
the  same  regulations  now  provided  by  law  in  respect  to  secur- 
ity for  such  appeal;  but  such  appeal  must  be  taken  within 
twenty  days  from  the  day  of  rendition  of  the  judgment  of  said 
circuit  court.  If  the  judgment  of  the  circuit  court  shall  be  in 
favor  of  the  party  complaining  he  or  they  shall  be  entitled  to 
recover  a  reasonable  counsel  or  attorney's  fee,  to  be  fixed  by 
the  court,  which  shall  be  collected  as  part  of  the  costs  in  the 
case.  For  the  purposes  of  this  act,  excepting  its  penal  provi- 
sions, the  circuit  courts  of  the  United  States  shall  be  deemed 
to  be  always  in  session. 

§  284.     The  saving  of  the  right  of  trial  by  jury.— The 

Amendment  of  March  2,  1889,  excepted  in  the  first  paragraph 
from  the  equity  jurisdiction  of  the  court  the  orders  not  found- 
ed upon  a  controversy  requiring  trial  by  jury,  as  provided  by 
the  Seventh  Amendment  to  the  Constitution  of  the  United 
States,  and  also  provided  in  the  last  paragraph  for  the  trial 
by  jury  of  such  controversies.  The  Seventh  Amendment  to 
the  Constitution  provides  that  in  suits  at  common  law  where 


§  2S5.]  INTERSTATE    COMMERCE    ACT.  327 

the  value  in  controversy  shall  exceed  twenty  dollars,  the  right 
of  trial  by  jury  shall  be  preserved  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  court  of  the  United 
States  than  according  to  the  ruling  of  the  common  law.  This 
Amendment  of  18S9  was  made  in  view  of  the  express  require- 
ment in  section  14  that  the  Commission  should  make  recom- 
mendation as  to  what  reparation,  if  any,  should  be  made  by 
the  common  carrier  to  any  party  or  parties  who  may  have 
been  found  to  have  been  injured. 

In  Interstate  Commerce  Commission  v.  W.,  ~N.  Y.  &  P.  E.  E. 
82  Fed.  Eep.  192  (W.  Dist.  of  Penn.),  the  complaint  of  the 
Commission  contained  a  requirement  that  the  railroad  compa- 
nies should  make  reparation  to  the  complaining  shippers,  and 
included  a  finding  and  an  order  to  the  amount  each  com- 
plainant was  entitled  to  recover  as  reparation  for  defendant's 
alleged  unlawful  charges.  The  Circuit  Court  sustained  a  de- 
murrer to  so  much  of  the  petition  as  related  to  reparation 
claims,  holding  that  the  Court  had  no  power  to  enforce  such 
orders.  The  Court  said  that  the  distinction  between  lesal  and 
equitable  rights  and  remedies  was  sharply  defined  in  the  Act, 
and  that  each  claimant  had  a  plain,  adequate  and  complete 
remedy  at  law.  The  railroads  could  not  be  deprived  of  their 
rights  of  trial  by  jury,  by  reason  of  the  fact  that  claimants 
had  seen  fit,  in  the  first  instance,  to  apply  to  the  Commission. 
The  jurisdiction  of  the  Court  was  auxiliary  and  limited,  and 
the  principle  in  equity  to  have  taken  jurisdiction  to  go  through 
with  the  case  was  not  applicable.  It  would  follow  therefore 
that  the  right  of  each  shipper  to  reparation  and  damages  is  a 
separate  legal  controversy,  which  is  entitled  to  a  jury  trial 
when  in  excess  of  twenty  dollars.  The  Commission  proceeded 
upon  this  view  in  a  late  case,  that  of  the  Texas  Cattle  Eaisers 
(10  I.  C.  C.  E.  83),  and  directed  each  of  the  individual 
members  of  the  complaining  association  seeking  damages,  to 
file  a  claim  in  the  nature  of  an  intervening  petition  with  a 
specification  giving  as  definitely  as  possible,  the  dates  and 
amounts  paid.  The  Commission  said  however  that  the  law  as 
to  the  procedure  in  the  enforcement  of  such  claims  was  un- 
settled. 

§  285.  Limitations  of  actions  for  reparation. —  In  the  case 
last  cited,  the  Commission  discussed  the  question  of  limitations, 


328  INTERSTATE    COMMERCE    ACT.  [SECTION    16. 

and  inclined  to  the  opinion  that  the  beginning  of  proceedings 
before  the  Commission  should  be  treated  as  the  beoinnina:  of 
the  suit  by  the  iiling  of  the  original  petition  before  the  Com- 
mission. This  question  however  of  the  application  of  the 
statute  of  limitations  to  such  claims  has  not  been  judicially 
determined.  It  would  seem  from  analogy  to  the  application 
of  the  statute  in  suits  brought  by  shippers  under  sections  8 
and  '.'.  (see  supra),  that  the  limitation  statute  as  to  such  rights 
of  action,  in  the  states  where  the  claim  is  sought  to  be  en- 
forced, should  control,  and  the  beginning  of  the  suit  to  enforce 
the  individual  claimant's  rights  to  reparation  should  be  the 
beginning  of  the  action  within  the  meaning  of  such  statute. 

§  286.  Jurisdiction  of  the  Circuit  Court. —  The  petition  of 
the  Commission  is  to  be  filed  in  the  Circuit  Court  of  the  United 
States  in  the  judicial  district  where  the  common  carrier  com- 
plained of  has  his  principal  office,  or  in  which  the  violation  or 
disobedience  of  this  order  shall  happen.  In  Interstate  Com- 
merce Commission  v.  W.,  N.  Y.  &  P.  It.  R.,  82  Fed.  Rep.  102, 
the  court  said  that  the  violation  within  the  judicial  district 
of  the  order  of  the  Commission  by  any  one  of  the  defendants 
who  were  parties  to  the  common  arrangement  for  interstate 
shipments,  was  violation  or  disobedience  of  all  the  defendants 
who  were  parties  to  and  acting  under  the  common  arrange- 
ment, and  that  all  of  them  were  subject  to  the  jurisdiction  of 
the  court  in  the  district  wherein  the  offense  was  committed. 

See  also  Commission  v.  Southern  Pacific  Ry.,  74  Fed.  Rep. 
42;  Commission  v.  So.  Pa.  R.  R.  Co.  et  al.,  123  Fed.  Rep.  597. 

§  287.  Proper  and  necessary  parties  to  procedure. —  Pro- 
ceedings in  the  Circuit  Court  to  enforce  the  orders  of  the  Com- 
mission may  be  hied  by  any  company  or  person  interested 
in  the  order  of  the  Commission,  or  by  the  Commission  itself, 
as  a  party  complainant.  In  Texas  <fe  Pacific  R.  R.  v.  Inter- 
state Commerce  Commission,  102  IT.  S.  197,  40  L.  Ed.  840, 
the  Supreme  Court  said  that  the  Interstate  Commerce  Com- 
mission was  a  body  corporate,  with  legal  capacity  to  be  a 
party  plaintiff  or  defendant  in  the  federal  courts.  When  the 
petition  is  filed  or  presented  by  the  Commission,  it  is  the  duty 
of  the  district  attorney  under  direction  of  the  Attorney  Gen- 
eral of  the  United  States  to  prosecute.  Suit  may  also  be 
•brought  by  the  United  States  at  the  expense  of  the  Commis- 
sion without  any  preliminary  proceeding  before  the  Commission. 


,§§   2SS,  289. J  INTERSTATE    COMMERCE    ACT.  329 

It  seems  that  it  is  not  necessary  that  the  Commission  should 
have  a  preliminary  investigation  before  filing  suit  for  the  en- 
forcement of  its  own  orders;  on  the  contrary,  it  was  said  by 
the  Supreme  Court  in  Texas  &  Pacific  case,  supra: 

"We  do  not,  of  course,  mean  to  imply  that  the  Commission 
may  not  directly  institute  proceedings  in  a  Circuit  Court  of  the 
United  States  charging  a  common  carrier  with  disregard  of 
the  provisions  of  the  Act  and  that  thus  it  may  become  the  duty 
of  the  court  to  try  the  case  in  the  first  instance." 

§  288.  Parties  defendant. —  All  the  parties  to  the  rate  com- 
plained of  are  proper  parties,  but  they  are  not  all  necessary 
parties.     See  Texas  &  Pacific  Py.  case,  supra. 

The  successors  of  railroad  companies  who  are  made  parties 
to  proceedings  before  the  Commission,  are  not  strangers  to  the 
order,  but  are  bound  by  the  judgment  or  decree  in  the  suit,  on 
the  principle  that  they  are  purchasers  of  the  litigation, pen- 
dente lite. 

See  Interstate  Commerce  Commission  v.  "W.,  K.Y.  &  P.  P.  P., 
82  Fed.  Pep.  192.  Commission  v.  So.  Pa.  Co.  et  al.,  123  Fed. 
597. 

§289.  Prima  facie  effect  of  the  report. —  The  Supreme 
Court  said  in  C,  K  O.  &  T.  P.  Ey.  v.  Commission,  102  U.  S.  184, 
40  L.  Ed.  935,  that  the  testimony  in  the  Circuit  Court  is  not 
limited  to  that  taken  before  the  Commission;  that  is  to  say, 
either  party  may  introduce  other  testimony.  The  Supreme 
Court  in  this  case,  expressed  disapproval  of  such  a  method  of 
procedure  on  the  part  of  the  railroad  companies  as  would  lead 
them  to  withhold  the  larger  part  of  their  evidence  from  the 
Commission  and  first  adduce  it  in  the  circuit  court,  saying: 

"  The  Commission  is  an  administrative  board  and  the  courts 
are  only  to  be  resorted  to  when  the  Commission  prefers  to  en- 
force the  provisions  of  the  statute  by  a  direct  preceding  in  the 
court,  or  when  the  orders  of  the  Commission  have  been  disre- 
garded. The  theory  of  the  act  evidently  is,  as  shown  by  the 
provision,  that  the  findings  of  the  Commission  should  be  re- 
garded as  prima  fade  evidence  that  the  facts  of  the  case  are 
to  be  disclosed  before  the  Commission-.  We  do  not  mean,  of 
course,  that  either  party,  in  a  trial  in  a  court,  is  to  be  restricted 
to  the  evidence  that  was  before  the  Commission,  but  that  the 
purpose  of  the  act  called  for  a  full  inquiry  by  the  Commission 
into  all  the  circumstances  and  conditions  pertinent  to  the  ques- 
tions involved." 

It  follows  that  in  a  suit  to  enforce  the  orders  of  the  Commis- 
sion, the  burden  rests  upon  the  defendant  company  to  show 


330  INTERSTATE    COMMERCE    ACT.  [SECTION    16^ 

them  to  be  erroneous.  Commission  v.  L.  &  X.  Ey.,  102  Fed. 
Rep.  709,  US  Fed.  Rep.  013.  See  also  Commission  v.  C.  B.  & 
Q.  R.  R.  Co.,  94  Fed.  Rep.  272. 

In  Commission  v.  Southern  Pacific  Company  et  al,  123- 
Fed.  Rep.  597,  in  a  suit  brought  to  enforce  the  order  of  the 
Commission,  that  the  railroad  company  should  desist  from  the 
practice  of  controlling  through  routing,  the  Court  held  that  the 
finding  of  the  Commission  that  this  practice  subjected  shippers 
to  an  undue  prejudice  was  one  of  fact,  and  the  order  based 
thereon  requiring  the  company  to  desist  was  prima  facie  a 
lawful  order  such  as  the  court  was  required  to  enforce  in  a 
suit  brought  under  section  16,  and  the  finding  of  the  Com- 
•  >n  that  such  a  practice  was  made  in  violation  of  section  5 
of  the  Act  supported  the  lawfulness  of  the  order  requiring 
the  companies  to  desist  from  enforcing  such  rule.  The  de- 
murrer to  the  petition  was  therefore  overruled.  See  final  de- 
cree in  this  case  in  132  Fed.  Eep.  S29. 

§290.  The  revisory  power  of  the  Court. —  The  Circuit 
( Jourt  has  no  revisory  power  over  the  orders  of  the  Commission ; 
that  is,  the  court  can  only  enforce  or  refuse  to  enforce  the  or- 
ders of  the  Commission.  Thus  it  was  said  in  Commission  v. 
D.,  L.  &  W.  Ry.,  64  Fed.  Eep.  723,  that  the  Court  could  not 
substitute  for  an  order  actually  made,  one  which  the  Commis- 
sion might  or  should  have  made,  or  which  it  intended,  but 
failed  to  make.  In  the  Alabama  &  Midland  Ey.  case,  16S  U. 
S.  173,  42  L.  Ed,  414,  the  Supreme  Court  said,  that  where  the  Cir- 
cuit Court  of  Appeals  was  of  opinion  that  the  Commission  in  mak- 
ing its  order  has  misconceived  the  extent  of  its  powers,  and 
the  Circuit  Court  had  erred  in  affirming  the  validity  of  an  order 
made  under  such  misconception,  it  was  the  duty  of  the  Circuit 
Court  of  Appeals  to  reverse  the  decree,  set  aside  the  order,  and 
remand  the  case  to  the  Commission,  in  order  that  it  might,  if 
it  saw  fit,  proceed  therein  according  to  law.  The  defendant 
was  entitled  to  have  its  defense  considered  in  the  first  instance 
at  least,  by  the  Commission,  upon  a  full  consideration  of  all 
all  the  circumstances  and  conditions  upon  which  a  legitimate 
order  conld  be  found,  and  it  did  not  comport  with  the  true 
scheme  of  the  statute  that  the  Circuit  Court  of  Appeals  under- 
take of  its  own  motion  to  find  and  pass  upon  the  questions  of 
facts.  The  Supreme  Court  in  the  several  cases  heretofore 
cited,  wherein  it  held  that  the   Commission    had   proceeded' 


§§  201-293.]  INTERSTATE    COMMERCE    ACT.  331 

upon  a  misconception  of  the  law  as  to  the  controlling  effect 
of  competition,  directed  the  dismissal  of  the  proceedings  with- 
out prejudice  to  the  right  of  the  Commission  to  re-investigate 
the  facts. 

§291.  Injunction. — The  section  authorizes  writ  of  injunc- 
tion or  process  against  the  carriers  in  cases  of  disobedience.  A 
writ  of  preliminary  injunction  however  to  restrain  a  carrier 
from  disobeying  an  order  of  the  Commission  must  be  established 
according  to  due  course  of  equity  procedure.  Where  the  facts 
set  out  in  the  petition  of  the  Commission  are  denied  by  the 
answer  of  the  defendant,  such  findings  are  not  taken  as  estab- 
lished on  an  application  for  preliminary  injunction.  Commis- 
sion v.  Lehigh  Valley  Ry.,  49  Fed.  Eep.  177;  Kentucky,  etc. 
Bridge  Co.  v.  L.  &  N.  Ry.  Co.,  37  Fed.  Rep.  567. 

§292.  Right  of  appeal. —  The  section  provides  for  an  ap- 
peal from  the  Circuit  Court  to  the  Supreme  Court.  After  the 
act  of  1S91  establishing  the  Circuit  Court  of  Appeals  went 
into  effect,  appeals  thereafter  taken  from  decrees  of  the  Circuit 
Court  enforcing  orders  of  the  Interstate  Commerce  Commis- 
sion were  taken  directly  from  the  Circuit  Court  to  the  Circuit 
Court  of  Appeals.  Commission  v.  A.,  T.  &  S.  F.  R.  Co.,  149 
U.  S.  2G4,  37  L.  Ed.  727;  Little  Rock,  etc.  R.  Co.  v.  E.  Tenn. 
etc.  R.  Co.,  159  IT.  S.  698,  40  L.  Ed.  311.  Appeal  or  error  lies 
from  such  judgments  of  the  Circuit  Court  of  Appeals  to  the 
Supreme  Court  under  the  act  of  1891,  section  11.  In  controv- 
ersies of  this  kind  arising  under  the  Interstate  Commerce  Act, 
where  the  jurisdiction  of  the  Circuit  Court  is  not  dependent 
upon  diverse  citizenship,  the  judgment  of  the  Court  of  Appeals 
is  not  final.  L.  &  N.  R.  Co.  v.  Behlmer,  169  U.  S.  644,  42  L. 
Ed.  8S9.  But  see  Expedition  Act  of  February  11,  1903, 
whereunder  suits  in  equity  under  this  act,  and  the  Anti-Trust 
Act,  wherein  the  United  States  is  complainant,  are  appealable 
directly  to  the  Supreme  Court.    See  iiifra,  §  349. 

§293.  Supersedeas  on  appeal. —  The  section  provides  that 
such  appeal  "  shall  not  operate  to  stay  or  supersede  the  order  of 
a  court,  or  the  execution  of  any  writ  or  process  thereon."  It 
was  held  in  Commission  v.  L.  &  N.  Ry.,  101  Feci.  Rep.  146,  that 
this  provision  related  only  to  the  effect  of  an  appeal,  and  did 
not  deprive  the  Circuit  Courts  of  their  rights  of  control  over 
their  own  decrees.  A  decree  granting  an  injunction  is  not 
superseded  by  an  appeal  from  the  decree  even  though  all  the- 


332  INTERSTATE    COMMERCE    ACT.  [SECTION    10. 

requisites  for  a  supersedeas  be  complied  with.  Ilovey  v.  Mc- 
Donald, 100  U.  S.  161,  27  L.  Ed.  891;  Leonard  v.  Land  Co.,  115 
U.  S.  468,  29  L.  Ed.  115;  Knox  Co.  v.  Harshman,  132  U.  S.  11, 
33  L.  Ed.  210.  The  Circuit  Court  has  power  to  order  a  contin- 
uance of  the  stiit us  quo,  and  to  keep  the  injunction  in  force  pend- 
ing the  appeal,  and  as  long  as  the  appeal  remained  unperfected 
it  continued  under  the  power  of  the  Court  during  the  term. 
As  the  defendants  might  be  subject  to  irreparable  injury  and 
to  multiplicity  of  suits,  if  the  injunction  should  be  enforced 
pending  the  appeal,  it  was  ordered  that  the  defendant  keep  an 
accurate  account  of  their  shipments,  to  make  reports  to  the 
Court  quarterly,  and  to  give  bond,  and  thereupon  the  Court  or- 
dered the  injunction  suspended  pending  the  appeal. 

§  294.  The  provision  as  to  supersedeas  applies  only  to  ap- 
peals from  Circuit  Courts. —  It  was  held  in  Louisville  &  Nash- 
ville R.  Co.  v.  Behlraer,  100  U.  S.  611, 12  L.  Ed.  SS0,  that  the  pro- 
vision in  this  section  as  to  supersedeas  relates  only  to  appeals 
from  the  trial  court.  In  this  case  the  Circuit  Court  entered  a 
decree  dismissing  the  bill  filed  for  the  enforcement  of  the  or- 
der of  the  Commission.  71  Fed.  Eep.  835.  Behlmer  appealed 
to  the  Circuit  Court  of  Appeals  for  the  fourth  circuit,  and  that 
court  reversed  the  decree  of  the  Circuit  Court  and  directed 
that  the  order  of  the  Interstate  Commerce  Commission  be  en- 
forced. 2S  C.  C.  A.  220,  83  Fed.  Rep.  808.  An  appeal  was 
then  allowed  and  perfected  to  the  Supreme  Court.  The 
Supreme  Court  held  that  this  latter  appeal  operated  as  a  super- 
sedeas,  and  denied  the  motion  of  Behlmer  to  vacate  the  super- 
s< '/  as  resulting  from  the  allowance  of  the  appeal  and  the  ap- 
proval of  the  bond  tendered.  The  court  said  that  the  appeal 
treated  of  in  section  16  was  the  appeal  from  the  trial  court, 
and  did  not  apply  to  appeals  from  the  Circuit  Courts  of  Ap- 
peals, and  the  scope  of  the  provision  was  not  enlarged  by  the 
act  of  1801  creating  the  Circuit  Court  of  Appeals  so  as  to  make 
this  provision  apply  to  the  appeals  from  the  Circuit  Court  of 
Appeals.  The  court  said  that  when  the  case  was  brought  to 
the  Supreme  Court  from  the  Circuit  Court  of  Appeals,  their 
mandate  went  to  the  court  of  the  first  instance,  and  was  there 
carried  into  effect,  although  the  Court  of  Appeals  may  have 
sent  its  own  mandate  down  before  the  case  was  brought  to  the 
Supreme  Court. 


§  295.]  interstate  commerce  act.  333 

Section  17. 
§  295.     Interstate  Commerce  Commission — Form  of  procedure. 

§  205.  Interstate  Commerce  Commission — Form  of  pro- 
cedure.— Sec.  IT.  (As  amended  March  2,  1889.)  That  the  Com- 
mission may  conduct  its  proceedings  in  such  manner  as  will 
best  conduce  to  the  proper  dispatch  of  business  and  to  the 
ends  of  justice.  A  majority  of  the  Commission  shall  constit- 
ute a  quorum  for  the  transaction  of  business,  but  no  Commis- 
sioner shall  participate  in  any  hearing  or  proceeding  in  which 
he  has  any  pecuniary  interest.  Said  Commission  may,  from 
time  to  time,  make  or  amend  such  general  rules  or  orders  as 
may  be  requisite  for  the  order  and  regulation  of  proceedings 
before  it,  including  forms  of  notices  and  the  service  thereof, 
which  shall  conform,  as  nearly  as  may  be,  to  those  in  use  in 
the  courts  of  the  United  States.  Any  party  may  appear  be- 
fore said  Commission  and  be  heard,  in  person  or  by  attorney. 
Every  vote  and  official  act  of  the  Commission  shall  be  entered 
of  record,  and  its  proceedings  shall  be  public  upon  the  request 
of  either  party  interested.  Said  Commission  shall  have  an 
official  seal,  which  shall  be  judicially  noticed.  Either  of  the 
members  of  the  Commission  may  administer  oaths  and  affirm- 
ations and  sign  subpoenas. 


334:  INTERSTATE    COMMERCE    ACT.  [SECTION    18. 


Section   18. 

§  296.     Salaries  of  Commissioners,  secretary,  etc. 
207.     Expenses  of  the  Commission. 

§  296.  Salaries  of  Commissioners,  secretary,  etc. —  Sec. 
L8.  (As  amended.)  That  each  Commissioner  shall  receive  an 
annual  salary  of  seven  thousand  five  hundred  dollars,  payable 
in  the  same  manner  as  the  judges  of  the  courts  of  the  United 
States.  The  Commission  shall  appoint  a  secretary,  who  shall 
receive  au  annual  salary  of  three  thousand  five  hundred  dol- 
lars, payable  in  like  manner.  The  Commission  shall  have 
authority  to  employ  and  fix  the  compensation  of  such  other 
employees  as  it  may  find  necessary  to  the  proper  performance 
of  its  duties.  Until  otherwise  provided  by  law,  the  Commis- 
sion may  hire  suitable  offices  for  its  use,  and  shall  have 
authority  to  procure  all  necessary  office  supplies.  Witnesses 
summoned  before  the  Commission  shall  be  paid  the  same  fees 
and  mileage  that  are  paid  witnesses  in  the  courts  of  the 
United  States. 

All  of  the  expenses  of  the  Commission,  including  all  neces- 
sary expenses  for  transportation  incurred  by  the  Commission- 
ers, or  by  their  employees  under  their  orders,  in  making  any 
investigation,  or  upon  official  business  in  any  other  places 
than  in  the  city  of  Washington,  shall  be  allowed  and  paid  on 
the  presentation  of  itemized  vouchers  therefor  approved  by 
the  chairman  of  the  Commission. 

§  297.  Expenses  of  the  Commission. —  The  secretary  of  the 
Interstate  Commerce  Commission  is  entitled  to  be  reimbursed 
for  telegrams  sent  by  him  in  pursuance  of  directions  of  the 
Commission,  approved  by  the  chairman  of  the  Commission, 
and  accompanied  by  the  request  of  the  chairman  that  the 
rules  of  the  comptroller  as  to  the  production  of  copies  of  tele- 
grams for  which  credit  is  asked  be  disregarded  on  account  of 
the  confidential  character  of  the  messages,  the  secretary  hav- 
ing also  offered  to  submit  the  books  of  the  Commission  to  the 
comptroller  and  auditing  officers  of  the  Treasury.  United 
States  v.  Moseley,  187  U.  S.  322,  47  L.  Ed.  108,  affirming  the 
judgment  of  the  Court  of  Claims. 


.§§  298,  209.]  INTERSTATE    COMMERCE    ACT.  335 


Section  19. 

§  298.    Principal  office  of  the  Commission,  etc. 
299.    Practice  of  Commission  in  hearing. 

§  298.  Principal  office  of  the  Commission,  etc. —  Sec.  19. 

That  the  principal  office  of  the  Commission  shall  be  in  the  city 
of  Washington,  where  its  general  sessions  shall  be  held;  but 
whenever  the  convenience  of  the  public  or  the  parties  may  be 
promoted  or  delay  or  expense  prevented  thereby,  the  Commis- 
sion may  hold  special  sessions  in  any  part  of  the  United  States. 
It  may,  by  one  or  more  of  the  Commissioners,  prosecute  any 
inquiry  necessary  to  its  duties,  in  any  part  of  the  United  States, 
into  any  matter  or  question  of  fact  pertaining  to  the  business 
of  any  common  carrier  subject  to  the  provisions  of  this  act. 

§  299.  Practice  of  Commission  in  hearing. —  The  Commis- 
sion has  from  its  first  organization  followed  the  practice  of 
deciding  cases  involving  local  rates  to  be  heard  before  one  or 
more  members  of  the  Commission  at  a  central  point  in  the  ter- 
ritory immediately  affected  bv  the  rates.  2  I.  C.  C.  R.  309,  2 
Int.  Com.  Rep.  799. 


Out)  INTERSTATE   COMMERCE    ACT.  [SECTION    20.. 


Section  20. 

§  300.     Carriers  subject  to  the  Act  must  render  full  annual  reports  to 

Commission. 

§  300.  Carriers  subject  to  the  Act  must  render  full  an- 
nual reports  to  Commission. —  Sec.  20.  That  the  Commission 
is  hereby  authorized  to  require  annual  reports  from  all  com- 
mon carriers  subject  to  the  provisions  of  this  act,  to  fix  the 
time  ami  prescribe  the  manner  in  which  such  reports  shall  be 
made,  and  to  require  from  such  carriers  specific  answers  to  all 
questions  upon  which  the  Commission  ma\r  need  information. 
Such  annual  reports  shall  show  in  detail  the  amount  of  capital 
stock  issued,  the  amounts  paid  therefor,  and  the  manner  of  pay- 
ment for  the  same;  the  dividends  paid,  the  surplus  fund,  if 
any.  and  the  number  of  stockholders;  the  funded  and  floating- 
debts  and  the  interest  paid  thereon;  the  cost  and  value  of  the 
carrier's  property,  franchises,  and  equipments;  the  number  of 
employees  and  the  salaries  paid  each  class;  the  amounts  ex- 
pended for  improvements  each  year,  how  expended,  and  the 
character  of  such  improvements;  the  earnings  and  receipts 
from  each  branch  of  business  and  from  all  sources;  the  ope- 
rating and  other  expenses;  the  balances  of  profit  and  loss;  and 
a  complete  exhibit  of  the  financial  operations  of  the  carrier 
each  year,  including  an  annual  balance-sheet.  Such  reports 
shall  also  contain  such  information  in  relation  to  rates  or  reg- 
ulations concerning  fares  or  freights,  or  agreements,  arrange- 
ments, or  contracts  with  other  common  carriers,  as  the  Com- 
mission may  require;  and  the  said  Commission  may,  within  its 
discretion,  for  the  purpose  of  enabling  it  the  better  to  carry 
out  the  purposes  of  this  act,  prescribe  (if  in  the  opinion  of  the 
Commission  it  is  practicable  to  prescribe  such  uniformity  and 
methods  of  keeping  accounts)  a  period  of  time  within  which 
all  common  carriers  subject  to  the  provisions  of  this  act  shall 
have,  as  near  as  may  be,  a  uniform  system  of  accounts,  and 
the  manner  in  which  such  accounts  shall  be  kept. 

§301.  Railroads  which  are  not  subject  to  section  20  of 

the  Act. —  A  railroad  lying  wholly  within  a  state  which  trans- 
ports freight,  whether  coming  from  within  or  without  the 
state,  solely  on  local  bills  of  lading,  under  a  special  contract 
limited  to  its  own  line,  and  without  dividing  charges  with  any 
other  carriers  or  assuming  any  other  obligations  to  or  for 
them,  does  not  come  within  the  provisions  of  the  Interstate 
Commerce  Act  and  is  not  bound  to  make  any  report  of  its 
business   to  the  Interstate   Commerce   Commission,     United 


§  301.]  INTERSTATE    COMMERCE    ACT.  337 

States  ex.  rel.  Com.  v.  K.  &  S.  K.  Co.,  81  Fed.  Rep.  783,  W. 
Dist.  of  Mich.  See  also  Commission  v.  Bellaire  C.  &  Z.  R.  Co., 
77  Fed.  Rep.  942. 

The  Commission  has  held  that  a  carrier  operating  a  railroad 
wholly  within  a. state,  but  engaged  in  interstate  transporta- 
tion, is  required  under  the  Act  to  report  to  the  Commission, 
(see  report  for  1897,  p.  100).  Interstate  Commerce  Commis- 
sion v.  Seaboard  Railway  Co.,  S2  Fed.  Rep.  563.  A  suit  is  now 
(1905)  pending  in  the  Supreme  Court  of  the  United  States 
brought  by  the  Commission  against  the  Lake  Shore  &M.  S.  R. 
Co. by  mandamus  to  compel  compliance  with  an  order  of  the 
Commission  to  file  an  annual  report  under  this  section,  the 
Circuit  Court  having  denied  the  writ  on  the  ground  that  it  had 
no  jurisdiction  to  issue  an  original  writ.  Similar  suits  are  pend- 
ing in  other  circuits  waiting  the  decision  of  the  Supreme  Court 
in  this  case.  In  U.  S.  ex  rel  Com.  v.  C.  K.  S.  R.  R.  Co.,  81 
Fed.  Rep.  783  (1S9G),  and  U.  S.  ex  rel  v.  Seaboard  Ry.  Co.,  85 
Fed.  Rep.  955  (1S98),  the  jurisdiction  to  enforce  reports  by 
mandamus  seems  to  have  been  assumed.  While  question  seems 
to  have  been  raised  as  to  the  extent  of  the  power  of  the  Com- 
mission in  the  requirements  of  reports  from  the  carriers,  there 
seems  to  have  been  no  judicial  determination. 

This  case  was  affirmed  by  the  Supreme  Court  April  10, 1905, 
the  Court  holding  that  the  Circuit  Court  had  no  jurisdiction 
under  this  section  to  enforce  reports  by  writ  of  mandamus, 
such  power  to  issue  original  writs  of  mandamus  only  existing 
in  the  circuit  courts  when  specifically  conferred  by  statute. 

22 


33S  INTERSTATE    COMMERCE    ACT.  [SECTION    21; 


Section  21. 

^  302.     Annual  reports  of  the  Commission  to  Congress  on  or  before  De- 
cember 1st  each  year. 

§  302.  Annual  reports  of  the  Commission  to  Congress  on 
or  before  December  1st  each  year.— Sec.  21.  (As  amended 
March  ..'.  1889).  That  the  Commission  shall,  on  or  before  the 
first  day  of  December  in  each  year,  make  a  report,  which  shall 
be  transmitted  to  Congress,  and  copies  of  which  shall  be 
distributed  as  are  the  other  reports  transmitted  to  Congress. 
This  report  shall  contain  such  information  and  data  collected 
by  the  Commission  as  may  be  considered  of  value  in  the  de- 
termination of  questions  connected  with  the  regulation  of 
commerce,  together  with  such  recommendations  as  to  addi- 
tional legislation  relating  thereto  as  the  Commission  may  deem 
necessary;  and  the  names  and  compensation  of  the  persons 
employed  by  said  Commission. 


§  303.]  interstate  commerce  act.  339 

Section  22. 

Page 
§  303.     Persons  and  property  that  may  be  carried  free  or  at  reduced 

rates,  etc 339 

304.     Amendments  to  section 340 

30,1.     The  section  illustrative  and  not  exclusive 340 

306.  The  section  permissive  only 341 

307.  Withdrawal  of  commutation  tickets 341 

|  303.  Persons  and  property  that  may  be  carried  free  or 
at  reduced  rates,  etc. —  Sec.  22.  {As  amended  March  #,  1889, 
and  February  8,  1895.)  That  nothing  in  this  act  shall  prevent 
the  carriage,  storage,  or  handling  of  property  free  or  at  reduced 
rates  for  the  United  States,  State,  or  municipal  governments, 
or  for  charitable  purposes,  or  to  or  from  fairs  and  expositions 
for  exhibition  thereat,  or  the  free  carriage  of  destitute  and 
homeless  persons  transported  by  charitable  societies,  and  the 
necessary  agents  employed  in  such  transportation,  or  the  issu- 
ance of  mileage,  excursion,  or  commutation  passenger  tickets; 
nothing  in  this  act  shall  be  construed  to  prohibit  any  common 
carrier  from  giving  reduced  rates  to  ministers  of  religion,  or 
to  municipal  governments  for  the  transportation  of  indigent 
persons,  or  to  inmates  of  the  National  Homes  or  State  Homes 
for  Disabled  Volunteer  Soldiers,  and  of  Soldiers'  and  Sailors'  Or- 
phan Homes,  including  those  about  to  enter  and  those  return- 
ing home  after  discharge,  under  arrangements  with  the  boards 
of  managers  of  said  homes;  nothing  in  this  act  shall  be  con- 
strued to  prevent  railroads  from  giving  free  carriage  to  their 
own  officers  and  employees,  or  to  prevent  the  principal  officers 
of  any  railroad  company  or  companies  from  exchanging  passes 
or  tickets  with  other  railroad  companies  for  their  officers  and 
employees;  and  nothing  in  this  act  contained  shall  in  any  way 
abridge  or  alter  the  remedies  now  existing  at  common  law  or 
by  statute,  but  the  provisions  of  this  act  are  in  addition  to  such 
remedies:  Provided,  That  no  pending  litigation  shall  in  any 
way  be  affected  by  this  act:  Provided  further,  That  nothing 
in  this  act  shall  prevent  the  issuance  of  joint  interchangeable 
five-thousand  mile  tickets,  with  special  privileges  as  to  the 
amount  of  free  baggage  that  may  be  carried  under  mileage 
tickets  of  one  thousand  or  more  miles.  But  before  any  com- 
mon carrier,  subject  to  the  provisions  of  this  act,  shall  issue 
any  such  joint  interchangeable  mileage  tickets  with  special 
privileges,  as  aforesaid,  it  shall  file  with  the  Interstate  Com- 
merce Commission  copies  of  the  joint  tariffs. of  rates,  fares,  or 
charges  on  which  such  joint  interchangeable  mileage  tick- 
ets are  to  be  based,  together  with  specifications  of  the  amount 
of  free  baggage  permitted  to  be  carried  under  such  tickets,  in 
the  same  manner  as  common  carriers  are  required  to  do  with 
regard  to  other  joint  rates  hy  section  six  of  this  act;  and  all 


3-±('  INTERSTATE    COMMERCE    ACT.  [SECTION    22. 

the  provisions  of  said  section  six  relating  to  joint  rates,  fares, 
and  charges  shall  be  observed  by  said  common  carriers  and 
enforced  by  the  Interstate  Commerce  Commission  as  fully 
with  regard  to  such  joint  interchangeable  mileage  tickets  as 
with  regard  to  other  joint  rates,  fares,  and  charges  referred  to 
in  said  section  six.  It  shall  be  unlawful  for  any  common  car- 
rier that  has  issued  or  authorized  to  be  issued  any  such  joint  in- 
terchangeable mileage  tickets  to  demand,  collect,  or  receive 
from  any  person  or  persons  a  greater  or  less  compensation  for 
transportation  of  persons  or  baggage  under  such  joint  inter- 
changeable mileage  tickets  than  that  required  by  the  rate,  fare, 
or  charge  specified  in  the  copies  of  the  joint  tariff  of  rates, 
tares,  or  charges  filed  with  the  Commission  in  force  at  the  time. 
The  provisions  of  section  ten  of  this  Act  shall  apply  to  any 
violation  of  the  requirements  of  this  proviso. 

§  M)±.  Amendments  to  section. — The  amendment  of  March 
2,  18S9,  incorporated  in  the  Act  to  Regulate  Commerce,  a  pro- 
vision as  follows: 

"  Nothing  in  this  act  contained  shall  in  any  way  abridge  or 
alter  the  remedies  now  existing  at  common  law,  or  by  statute, 
but  the  provisions  of  this  act  are  in  addition  to  such  remedies." 

Xot  withstanding  the  collocation  of  this  provision  in  the 
twenty-second  section,  it  clearly  is  to  be  construed  with  all  of 
these  sections,  and  relates  to  ail  the  remedies  provided  by  the 
Act  and  has  been  so  construed  by  the  courts.  See  section  S  of 
Act,  supra. 

The  amendment  of  1895  incorporated  a  second  proviso  con- 
cerning the  issuance  of  joint  interchangeable  five  thousand 
mile  tickets. 

§  305.  The  section  illustrative  and  not  exclusive. —  This 
section  was  construed  in  the  Party  Rate  case,  145  U.  S. — 
(supra),  where  the  Court  said,  that  the  provision  that  the  dis- 
criminations in  favor  of  certain  persons  therein  named  shall 
not  be  deemed  unjust,  did  not  forbid  discriminations  in  favor 
of  others  under  circumstances  and  conditions  so  substantially 
alike  as  to  justify  the  same  treatment.  The  object  of  section 
22  was  to  settle  beyond  all  doubt  that  discriminations  in  favor 
of  certain  persons  therein  named  should  not  be  deemed  un- 
just, and  the  section  was  rather  illustrative  than  exclusive. 
The  Court  said  that  many,  if  not  all,  of  the  excepted  classes 
named  in  section  22,  are  those  which  in  the  absence  of  the 
section  would  not  necessarily  be  held  the  subjects  of  an  un- 
just discrimination,  if  more  favorable  terms  were  extended  to 
them  than  to  ordinary  passengers. 


§§  300,  307.]  INTERSTATE    COMMERCE   ACT.  341 

In  Ex  parte  Koehler,  31  Fed.  Rep.,  315,  it  was  ruled  by  the 
Circuit  Court  under  this  section,  that  the  exception  allowed 
for  the  issuance  of  passes  in  favor  of  officers  and  employees, 
did  not  include  the  families  of  such  persons,  such  preferences 
being  forbidden  by  section  2  of  the  Act. 

In  U.  S.  v.  Chicago  &  K  W.  Ry.,  127  Fed.  Rep.  785,  it  was 
ruled  by  the  Circuit  Court  of  Appeals  of  the  Seventh  Circuit, 
that  the  government  of  the  United  States  in  buying  transpor- 
tation of  a  railroad  for  its  soldiers  in  lots  of  ten  or  more,  was 
not  entitled  to  the  benefit  of  the  reduced  ten  party  rate  given 
by  the  company's  schedule  to  theatrical,  operatic  or  concert 
companies,  hunting  and  fishing  parties,  glee  clubs,  brass  or 
string  bands,  and  other  parties  of  like  character.  The  Court 
said  that  the  refusal  to  give  the  same  rates  did  not  constitute 
an  unjust  discrimination.  These  rates  were  for  tickets  closely 
limited  in  time  and  paid  for  in  cash  in  advance,  while 
those  furnished  the  government  were  furnished  on  requisitions 
and  paid  after  a  delayed  auditing;  that  the  tickets  of  other 
classes  increased  the  company's  business,  while  the  carrying 
of  soldiers  for  the  government  did  not.  So  that  the  conditions 
were  essentially  different  under  section  2. 

§  306.  The  section  permissive  only. —  This  section  is  per- 
missive only  and  imposes  no  restriction  upon  the  carrier  as  to 
the  issuance  of  such  tickets.  Congress  intended  by  this  pro- 
vision to  leave  the  issuance  of  such  tickets  free  from  restric- 
tion. There  is  no  discrimination  therefore  in  issuing  them  on 
one  occasion  and  not  issuing  them  on  another.  6  I.  C.  C.  R. 
113.  When  they  are  issued  however  whatever  the  occasion, 
they  must  be  offered  impartially  to  all  who  accept  the  condi- 
tions on  which  they  are  issued,  and  the  rates  at  which  they 
are  sold  must  be  published.  The  general  requirements  of  the 
act  to  regulate  commerce  are  as  applicable  to  these  classes  of 
tickets  as  to  any  others.  2  I.  C.  C.  R.  649,  2  Int.  Com.  Rep.  340. 
In  the  latter  case  the  Commission  recommended  the  amendment 
of  the  Act  so  as  to  define  what  should  be  considered  excursion 
and  commutation  tickets  and  restrict  their  issue  in  interstate 
commerce  so  as  to  prevent  the  abuses  pointed  out  in  the  opinion. 

§  307.  Withdrawal  of  commutation  tickets. —  Under  this 
section  carriers  are  allowed  to  issue  mileage  and  commutation 
as  well  as  excursion  tickets,  but  they  cannot  be  compelled  to 
•do  so.     As  it  is  their  discretion  when  they  shall  issue  such 


342  INTERSTATE    COMMERCE    ACT.  [SECTION    22. 

tickets,  it  is  equally  within  their  discretion  when  to  withdraw 
them.     It  was  suggested  in  8  I.  C.  C.  R.  443,  whether  the  al- 
lowance of  commutation  rates  at  stations  on  [one  line  of  a 
railroad  system  and  the  denial  of  such  rates  on  another  line 
of  the  same  system,  such  stations  being  respectively  of  the 
same  character,  would  be  an  undue  preference  or  not,  but  the 
question  was  not  involved  in  the  case  for  decision.     The  Com 
mission  in  this  case  cited  the  opinion  of  the  Supreme  Cour\ 
in    Lake  Shore   &   M.  S.  R,  Co.  v.  Smith,  173  U.  S.  084,  43  L 
Ed.  858,  where  the  Supreme  Court  held  that  the  power  of  the 
legislature  to  enact  general  laws  regarding  the  company  and 
its  affairs  did  not  include  the  power  to  compel  it  to  make   an 
exception  in  favor  of  some  particular  class  or  community  and 
to  carry  the   members  of  that  class  at  a  less  sum  than  it  has 
the  right  to  charge  those  who  were   not  fortunate  enough  to 
be  members  thereof.     The   Commission  said  in  this  case  that 
commutation  tickets  are  extensively  used  and  have  become  a  rec- 
ognized feature  of  suburban  transportation,  and  that  they  were 
far  from  savins:  that  a  carrier  who  has  established  commutation 
rates  for  suburban  service,  especially  when  residences  have  been 
fixed  and  business  interests  adjusted  in  reliance  upon  their  con- 
tinuance, could  suddenly  or  otherwise  withdraw  those  rates  and 
exact  from  its  patrons  the  full  rates  charged  to  the  occasional 
traveler.     It  was  held  in  the  case  however  that  the  action  of  the 
railroads  in   withdrawing  the   180-trip  quarterly   tickets  be- 
tween  Baltimore    and    Washington  was  within  the  limits  of 
their  discretion  and  did  not  constitute  a  violation  of  the  Act. 

As  to  thousand  mile  tickets,  see  1  I.  C.  C.  R.  156,  1  Int. 
Com.  Rep.  393.  As  to  mileage  tickets,  see  1  I.  C.  C.  Ii  147, 
1  Int.  Com.  Rep.  369. 

I ml'm n  Supplies.  —  "When  under  the  statute  the  Govern- 
ment contracts  for  the  delivery  of  the  supplies  needed  for  the 
Indian  service,  at  New  York  and  other  points  designated,  and 
then  advertises  for  bids  for  the  transportation  of  the  supplies 
from  the  points  of  delivery  to  the  points  where  they  are  to 
be  made  use  of,  this  transportation  at  the  cost  of  the  Govern- 
ment is  "for the  United  States"  within  the  meaning  of  section 
22  of  the  Act  to  Regulate  Commerce,  and  is  not  required  to  be 
made  at  the  regular  published  rates.  See  1  I.  C.  C.  R.  15,  1 
Int.  Com.  Rep.  22. 


j§  30S,  309.]  INTERSTATE    COMMERCE    ACT.  343 


Section  2$. 

§  308.     Jurisdiction  of  United  States  courts  to  issue  writs. 
309.     Application  of  section  to  car  shortage. 

§  308.  Jurisdiction  of  United  States  courts  to  issue  writs. 

Sec.  23.  (Added  March  2,  1889).  That  the  Circuit  and  District 
Courts  of  the  United  States  shall  have  jurisdiction  upon  the 
relation  of  any  person  or  persons,  firm,  or  corporation,  alleg- 
ing such  violation  by  a  common  carrier,  of  any  of  the  pro- 
visions of  the  act  to  which  this  is  a  supplement  and  all  acts 
amendatory  thereof,  as  prevents  the  relator  from  having  inter- 
state traffic  moved  by  said  common  carrier  at  the  same  rates 
as  are  charged,  or  upon  terms  or  conditions  as  favorable  as 
those  given  by  said  common  carrier  for  like  traffic  under  sim- 
ilar conditions  to  any  other  shipper,  to  issue  a  writ  or  writs  of 
mandamus  against  said  common  carrier  commanding  such 
common  carrier  to  move  and  transport  the  traffic,  or  to 
furnish  cars  or  other  facilities  for  transportation  for  the 
party  applying  for  the  writ:  Provided,  That  if  any  question 
of  fact  as  to  the  proper  compensation  to  the  common  carrier 
for  the  service  to  be  enforced  by  the  writ  is  raised  by  the 
pleadings,  the  writ  of  peremptory  mandamus  may  issue, 
notwithstanding  such,  question  of  fact  is  undetermined, 
upon  such  terms  as  to  security,  payment  of  money  into 
the  court,  or  otherwise,  as  the  court  may  think  proper,  pend- 
ing the  determination  of  the  question  of  fact:  Provided, 
That  the  remedy  hereby  given  by  writ  of  mandamus  shall  be 
cumulative,  and  shall  not  be  held  to  exclude  or  interfere  with 
other  remedies  provided  by  this  act  or  the  act  to  which  it  is  a 
supplement. 

§  309.  Application  of  section  to  car  shortage. —  This  sec- 
tion was  not  a  part  of  the  original  Act,  but  was  first  enacted 
in  the  amendatory  act  of  March  2,  1889.  It  deals  wholly  with 
the  remedial  process  of  mandamus.  This  remedy  was  unsuc- 
cessful^ invoked  in  a  number  of  cases  in  the  litigation  in 
which  the  effort  was  made  to  enforce  through  routing.  See 
"Interchange  of  Facilities,'-  supra.  The  difficulty  in  these 
cases  was  not  in  the  remedy,  but  with  the  right.  It  has  been 
successfully  invoked  however  in  cases  involving  the  alleged 
discrimination  in  the  supply  of  cars.  Thus  in  United  States 
v.  Norfolk  &  Western  K.  Co.,  109  Fed.  Eep.  831  ( Circuit 
Court  of  West  Virginia),  the  writ  was  granted  compelling  the 
railroad  company,  the  supply  of  cars  being  short,  to  pro-rate 


044  INTERSTATE    COMMERCE    ACT.  [SECTION    23. 

the  cars  on  hand  without  unjust  discrimination  among  all  the 
operators.  The  court  said  that  this  duty  of  the  railroad  to  so 
allot  the  cars  could  not  be  evaded  by  furnishing  special  cars 
for  one  shipper  to  be  used  exclusively  in  the  tranportation  of 
coal  for  that  shipper.  It  could  not  rent  its  tracks  or  permit 
them  to  be  appropriated  by  one  to  the  detriment  of  other 
shippers,  and  in  the  stress  of  unusual  business  special  cars 
would  be  applied  to  the  accomodation  of  all  shippers  alike.  See 
also  United  States  v.  West  Virginia  &  Northern  E.  Co.,  125  Fed. 
Rep.  252,  United  States  v.  Delaware,  L.  &  "W.  E.  Co.,  40  Fed. 
Rep.  101.    See  supra,  §  189,  "Unjust  Preference  in  Car  Service.*' 

In  "West  Virginia  Northern  Ey.  Co.  v.  United  States,  134 
Fed.  Rep.  198,  the  Circuit  Court  of  Appeals  (4th  Cir.),  Novem- 
ber  1904,  in  affirming  the  judgment  of  the  Circuit  Court  for 
Northern  District  of  AVest  Virginia,  125 Fed.  Eep.  252  (opin- 
ion by  Fuller.  ('.  J.),  said  that  a  mandamus  proceeding  against 
a  carrier  under  this  section  properly  included  the  President  of 
the  road,  and  there  was  no  error  in  addressing  the  mandate 
to  the  Company  and  the  President  and  each  of  them  ac- 
cording to  their  several  and  respective  powers,  while  the 
judgment  for  costs  went  against  the  company  alone.  The  court 
held  also  that  the  strict  rule  of  the  common  law  in  respect  of 
amendments  in  mandamus  was  not  applicable  to  cases  where 
the  writ  was  ordinary  process  under  a  statute  and  not  preroga- 
tive. No  reason  existed,  said  the  court,  why  proceedings  in 
mandamus  under  the  judgment  should  not  be  governed  by  the 
rules  obtaining  in  the  existence  of  ordinary  legal  remedies. 

In  this  case,  as  there  was  no  stipulation  in  writing  waiving 
a  jury,  the  only  question  of  law  reviewable  on  error  was  the 
sufficiency  of  the  alternative  writ,  or  of  the  findings  to  support 
the  judgment.  The  Circuit  Court  was  not  required  to  make 
specific  findings  of  facts.  The  court  held  also  that  the  Circuit 
Court  had  the  power  in  a  proceeding  of  this  character  to  fix 
the  percentage  of  cars  a  relator  should  have  and  to  com- 
mand that  such  percentage  of  cars  should  be  furnished  to  the 
relator.  Congress  did  not  intend  to  confine  the  scope  of  the 
act  to  admonition  merely  or  to  general  command  to  desist 
from  discrimination,  and  the  court  therefore  had  the  power  to 
point  out  the  particular  action  on  which  the  discrimination 
consisted  and  to  determine  from  the  facts  the  percentage  of 
the  supply  of  cars  to  which  the  relator  was  entitled. 


INTEKSTATE  COMMERCE  ACT  AMENDMENT. 

Amendatory  Act  of  February  19,  1903. 

An  Act  to  further  regulate  commerce  with  foreign  nations  and  among  the 

States. 

§310.  Carrier  corporation  as  well  as  officer  or  agent  li- 
able to  conviction  for  misdemeanor. —  Be  it  enacted  by  the 
Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled:  Sec.  1.  That  anything  done 
or  omitted  to  be  done  by  a  corporation  common  carrier,  sub- 
ject to  the  Act  to  regulate  commerce  and  the  Acts  amenda- 
tory thereof  which,  if  done  or  omitted  to  be  done  by  any  di- 
rector or  officer  thereof,  or  any  receiver,  trustee,  lessee,  agent, 
or  person  acting  for  or  employed  by  such  corporation,  would 
constitute  a  misdemeanor  under  said  Acts  or  under  this  Act 
shall  also  be  held  to  be  a  misdemeanor  committed  by  such 
Corporation,  and  upon  conviction  thereof  it  shall  be  subject  to 
like  penalties  as  are  prescribed  in  said  Acts  or  by  this  Act 
with  reference  to  such  persons  except  as  such  penalties  are 
herein  changed.  The  wilful  failure  upon  the  part  of  any  car- 
rier subject  to  said  Acts  to  file  and  publish  the  tariffs  or  rates 
and  charges  as  required  by  said  Acts  or  strictly  to  observe  such 
tariffs  until  changed  according  to  law,  shall  be  a  misdemeanor, 
and  upon  conviction  thereof  the  corporation  offending  shall  be 
subject  to  a  fine  of  not  less  than  one  thousand  dollars  nor  more 
than  twenty  thousand  dollars  for  each  offense;  and  it  shall  be 
unlawful  for  any  person,  persons,  or  corporation  to  offer,  grant, 
or  give  or  to  solicit,  accept,  or  receive  any  rebate,  concession, 
or  discrimination  in  respect  of  the  transportation  of  any  prop- 
erty in  interstate  or  foreign  commerce  by  any  common  carrier 
-subject  to  said  Act  to  regulate  commerce  and  the  Acts  amen- 
datory thereto  whereby  any  such  property  shall  by  any  device 
whatever  be  transported  at  a  less  rate  than  that  named  in  the 
tariffs  published  and  filed  by  such  carrier,  as  is  required  by 
said  Act  to  regulate  commerce  and  the  Acts  amendatory 
thereto,  or  whereby  any  other  advantage  is  given  or  discimi- 
nation  is  practiced.  Every  person  or  corporation  who  shall 
offer,  grant,  or  give  or  solicit,  accept  or  receive  any  such  re- 
bates, concession,  or  discrimination  shall  be  deemed  guilty  of 
a  misdemeanor,  and  on  conviction  thereof  shall  be  punished 
by  a  fine  of  not  less  than  one  thousand  dollars  nor  more  than 
twenty  thousand  dollars.  In  all  convictions  occurring  after 
the  passage  of  this  Act  for  offenses  under  said  Acts  to  regulate 


346  INTERSTATE    COMMERCE    ACT    AMENDMENT.  [Sec.  2. 

commerce,  whether  committed  before  or  after  the  passage  of 
this  Act,  or  for  offenses  under  this  section,  no  penalty  shall  be 
imposed  on  the  convicted  party  other  than  the  fine  prescribed 
by  law.  imprisonment  wherever  now  prescribed  as  part  of  the 
penalty  being  hereby  abolished.  Every  violation  of  this  sec- 
tion shall  be  prosecuted  in  any  court  of  the  United  States  hav- 
ing jurisdiction  of  crimes  within  the  district  in  which  such 
violation  was  committed  or  through  which  the  transportation 
may  have  been  conducted;  and  whenever  the  offense  is  begun 
in  one  jurisdiction  and  completed  in  another  it  may  be  dealt 
with,  inquired  of,  tried,  determined,  and  punished  in  either 
jurisdiction  in  the  same  manner  as  if  the  offense  had  been  ac- 
tually and  wholly  committed  therein. 

In  construing  and  enforcing  the  provisions  of  this  section 
the  act.  omission,  or  failure  of  any  officer,  agent  or  other  per- 
son acting  for  or  employed  by  any  common  carrier  acting 
within  the  scope  of  his  employment  shall  in  every  case  be  also 
deemed  to  be  the  act,  omission,  or  failure  of  such  carrier  as 
well  as  that  of  the  person.  Whenever  any  carrier  files  with 
the  Interstate  (  ommerce  Commission  or  publishes  a  particular 
rate  under  the  provisions  of  the  Act  to  regulate  commerce  or 
Acts  amendatory  thereto,  or  participates  in  any  rates  so  filed 
or  published,  that  rate  as  against  such  carrier,  its  officers,  or 
agents  in  any  prosecution  begun  under  this  Act  shall  be  con- 
clusively deemed  to  be  the  legal  rate,  and  any  departure  from 
such  rate,  or  any  offer  to  depart  therefrom,  shall  be  deemed 
to  be  an  offense  under  this  section  of  this  Act. 

This  section  materially  amends  section  10  of  the  Act.  See 
supra,  §  255.  In  its  provision  that  the  published  rate  is  con- 
clusively deemed  the  legal  rate  and  any  departure  or  offer  to 
depart  therefrom  made,  an  offense,  it  has  an  important  bearing 
unon  the  construction  of  section  2,  supra,  §  143,  in  that  it 
makes  unlawful  all  rebates  from  published  rates.     See  supra, 

§  lb;. 

§  311.  Parties  interested  subject  to  orders  or  decrees. — 

2.  That  in  any  proceeding  for  the  enforcement  of  the 
provisions  of  the  statutes  relating  to  interstate  commerce, 
whether  such  proceedings  be  instituted  before  the  Interstate 
Commerce  Commission  or  be  begun  originally  in  any  Circuit 
<  ourt  of  the  United  States,  it  shall  be  lawful  to  include  as 
parties,  in  addition  to  the  carrier,  all  persons  interested  in  or 
affected  by  the  rate,  regulation,  or  practice  under  considera- 
tion, and  inquiries,  investigations,  orders,  and  decrees  may  be 
made  with  reference  to  and  against  such  additional  parties  in 
the  same  manner,  to  the  same  extent,  and  subject  to  the  same 
provisions  as  are  or  shall  be  authorized  by  law  with  respect  to 
carriers.  The  party  receiving  the  rebate  is  included  in  the 
penalty  of  the  first  section. 


§  312.]  INTERSTATE    COMMERCE    ACT    AMENDMENT.  347 

See  §  106,  "Parties  Subject  to  the  Act,"  supra.  The  effect 
of  this  amendment  as  to  who  are  included  in  the  "persons  in- 
terested in  or  affected  by  the  rate,  regulation  or  practice  under 
consideration,''  has  not  been  judicially  determined.  The  own- 
ers of  equipment  leased  by  the  carrier,  and  who  are  directly 
interested  in  the  rates  charged  by  the  carrier  for  the  use  of 
such  equipment,  would  seem  to  be  "interested  in  or  affected 
by  the  rate  "  within  the  meaning  of  the  section.  The  party  re- 
ceiving the  rebate  is  included  in  the  penalty  of  the  first  section. 

§  312.  Proceedings  to  enjoin  or  restrain  departures  from 
published  rates. —  Sec  3.  That  whenever  the  Interstate  Com- 
merce Commission  shall  have  reasonable  ground  for  belief  that 
any  common  carrier  is  engaged  in  the  carriage  of  passengers  or 
freight  traffic  between  given  points  at  less  than  the  published 
rates  on  file,  or  is  committing  any  discriminations  forbidden  by 
law,  a  petition  may  be  presented  alleging  such  facts  to  the  ( !ir- 
cuit  Court  of  the  United  States  sitting  in  equity  having  jurisdic- 
tion; and  when  the  act  complained  of  is  alleged  to  have  been 
committed  or  as  being  committed  in  part  in  more  than  one 
judicial  district  or  State,  it  may  be  dealt  with,  inquired  of,, 
tried,  and  determined  in  either  such  judicial  district  or  state, 
whereupon  it  shall  be  the  duty  of  the  court  summarily  to  in- 
quire into  the  circumstances,  upon  such  notice  and  in  such 
manner  as  the  court  shall  direct  and  without  the  formal  plead- 
ings and  proceedings  applicable  to  ordinary  suits  in  equity, 
and  to  make  such  other  persons  or  corporations  parties  thereto 
as  the  court  may  deem  necessary,  and  upon  being  satisfied  of 
the  truth  of  the  allegations  of  said  petition  said  court  shall 
enforce  an  observance  of  the  published  tariffs  or  direct  and 
require  a  discontinuance  of  such  discrimination  by  proper  or- 
ders, writs,  and  process,  which  said  orders,  writs,  and  process 
may  be  enforceable  as  well  against  the  parties  interested  in 
the  traffic  as  against  the  carrier,  subject  to  the  right  of  appeal 
as  now  provided  by  law.  It  shall  be  the  duty  of  the  several 
district  attorneys  of  the  United  States,  whenever  the  Attorney- 
General  shall  direct,  either  of  his  own  motion  or  upon  the  re- 
quest of  the  Interstate  Commerce  Commission,  to  institute  and 
prosecute  such  proceedings,  and  the  proceedings  provided  for 
by  this  Act  shall  not  preclude  the  bringing  of  suit  for  the  re- 
cover}' of  damages  by  any  party  injured,  or  any  other  action 
provided  by  said  Act  approved  February  fourth,  eighteen  hun- 
dred and  eight}r-seven,  entitled  An  Act  to  regulate  commerce 
and  the  Acts  amendatory  thereof.  And  in  proceedings  under 
this  Act  and  the  Acts  to  regulate  commerce  the  said  courts 
shall  have  the  power  to  compel  the  attendance  of  witnesses, 
both  upon  the  part  of  the  carrier  and  the  shipper,  who  shall 
be  required  to  answer  on  all  subjects  relating  directly  or  indi- 
rectly to  the  matter  in  controversy,  and  to  compel  the  procluc- 


:UV  INTERSTATE    COMMERCE   ACT    AMENDMENT.  [SEC.  4. 

tion  of  all  books  and  papers,  both  of  the  carrier  and  the  ship- 
per, which  relate  directly  or  indirectly  to  such  transaction; 
the  claim  that  such  testimony  or  evidence  may  tend  to  crimi- 
inate  the  person  giving  such  evidence  shall  not  excuse  such 
person  from  testifying  or  such  corporation  producing  its  books 
and  papers,  but  no  person  shall  be  prosecuted  or  subjected  to 
anv  penalty  or  forfeiture  for  or  on  account  of  any  transaction, 
matter,  or  thing  concerning  which  he  may  testify  or  produce 
evidence  documentary  or  otherwise  in  such  proceeding:  Pro- 
vided, That  the  provisions  of  an  Act  entitled  "An  Act  to  ex- 
pedite the  hearing  and  determination  of  suits  in  equity  pend- 
ing or  hereafter  brought  under  the  Act  of  July  second, 
eighteen  hundred  and  ninety,  entitled  'An  Act  to  protect 
trade  and  commerce  against  unlawful  restraints  and  monop- 
olies," -An  Act  to  regulate  commerce,'  approved  February 
fourth,  eighteen  hundred  and  eighty-seven,  or  any  other  Acts 
having  a  like  purpose  that  may  be  hereafter  enacted,  approved 
February  eleventh,  nineteen  hundred  and  three,"  shall  apply 
to  any  case  prosecuted  under  the  direction  of  the  Attorney- 
General  in  the  name  of  the  Interstate  Commerce  Commission. 

As  to  the  authorization  of  injunction  to  restrain  violations 
of  the  act,  see  siqyra,  section  8  of  Interstate  Commerce  Act. 
As  to  extension  of  immunity  to  self-incriminating  witnesses, 
and  as  to  immunity  of  corporations,  see  §  268,  section  12  of 
Interstate  Commerce  Act. 

§  313.  Conflicting  laws  repealed.— Sec.  4.  That  all  acts 
and  parts  of  acts  in  conflict  with  the  provisions  of  this  Act  are 
hereby  repealed,  but  such  repeal  shall  not  affect  causes  now 
pending  nor  rights  which  have  already  accrued,  but  such  causes 
shall  be  prosecuted  to  a  conclusion  and  such  rights  enforced 
in  a  manner  heretofore  provided  by  law  and  as  modified  by 
the  provisions  of  this  Act. 

As  to  effect  of  this  section  upon  pending  cases,  see  si(j>ra, 
|  240,  section  S  of  Interstate  Commerce  Act. 


THE  ANTI-TRUST  ACT  OF  1890. 
Section  1. 

Page 
§  314.     Section  1  of  the  Act 349 

315.  Constitutionality  and  scope  of  the  Act 349 

316.  Interstate  transportation  is  subject  to  the  Act 350. 

317.  Unlawful  combinations  in  commerce  other  than  transporta- 

tion.    The  Addyston  Pipe  Trust  case. . ......   35  L 

318.  The  California  Tile  Trust  case * 352 

319.  The  Tennessee,  California  and  Ohio  Coal  cases 353. 

320.  The  Chicago  Meat  Trust  case 353, 

321.  The  Washington  Shingle  Trust  case 354 

322.  Incidental  restraint  of  trade  not  violative  of  the  Act 354 

323.  The  Kansas  City  Live  Stock  Exchange  cases 355 

324.  Agreements  not  within  the  Act ....   356. 

325.  Certain  agreements  not  to  enter  into  competition  not  within 

the  Act 357 

326.  Labor  combinations 357 

An  Act  to  protect  trade  and  commerce  against  unlawful  restraints  and 

monopolies. 

§  314,  Contracts,  combinations,  conspiracies,  in  restraint 
of  trade. — ■  Be  it  enacted  by  the  Senate'  and  House  of  Represen- 
tatives of  the  United  States  of  America  in  Congress  assembled: 
Sec.  1.  Every  contract,  combination  in  the  form  of  trust  or 
otherwise,  or  conspiracy,  in  restraint  of  trade  or  commerce 
among  the  several  States,  or  with  foreign  nations,  is  hereby 
declared  to  be  illegal.  Every  person  who  shall  make  any  such 
contract  or  engage  in  any  such  combination  or  conspiracy, 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction 
thereof,  shall  be  punished  by  tine  not  exceeding  five  thousand 
dollars,  or  by  imprisonment  not  exceeding  one  year,  or  by 
both  said  punishments,  in  the  discretion  of  the  court. 

§  315.  Constitutionality  and  scope  of  the  Act. —  As  to  the 

circumstances  of  the  passage  of  this  Act,  its  constitutionality 
and  its  general  construction  and  relation  to  business  and  labor 
combinations  in  interstate  commerce,  see  supra,  chap.  IV. 

The  most  important  case  decided  under  the  Act  was  the  so- 
called  Sugar  Trust  case,  United  States  v.  Knight  Company, 
156  U.  S.  1,  39  L.  Ed.  328,  decided  January  18,  1895,  as  it  de- 


350  THE    ANTI-TRUST    ACT    OF    1890.  [SECTION  1. 

termined  not  only  the  construction  and  application  of  this  Act, 
but  the  limitations  of  the  power  of  Congress  in  dealing  with 
business  combinations  or  so-called  monopolies. 

The  American  Refinery  Company  had  acquired  by  purchase 
of  stock  of  other  refining  companies  through  shares  of  its  own 
stock  nearly  complete  control  of  the  manufacture  of  refined 
sugar  in  the  United  States.  The  bill  filed  by  the  United 
States  charged  that  the  contracts  under  which  these  purchases 
were  made  constituted  combinations  in  restraint  of  trade,  and 
the  relief  sought  was  the  cancellation  of  the  agreements  under 
which  the  stock  was  transferred,  the  redelivery  of  the  stock  to 
the  vendors  ami  an  injunction  against  the  further  performance 
of  the  agreement.  The  Supreme  Court  affirmed  the  decree  of 
the  Circuit  Court,  60  Fed.  Rep.  3.06,  and  of  the  Circuit  Court 
>:    Appeals,  GO  Fed.  Rep.  934,  dismissing  the  bill  (Harlan,  J., 

ss  sating).  The  Court  said  the  monopoly  and  restraint  de- 
nounced by  the  xVct  were  the  monopoly  and  restraint  of  inter- 
state trade  and  coaimeree.  Manufacture  was  not  commerce. 
•Commerce  succeeded  to  manufacture  and  was  not  a  part  of  it, 
and  sale  as  an  incident  of  manufacture  therefore  was  distin- 
guished from  commerce.     See  supra,  §  68. 

^  316.  Interstate  transportation  is  subject  to  the  Act. — 
Transportation  is  commerce,. and  the  provisions  of  the  Act  are 
subject  to  and  cover  common  carriers  by  railroads.  This  appli- 
cation of  the  Act  was  first  made  in  the  Freight  Association 
case,  106  U.  S.  290,  41  L.  Ed.  1007,  decided  in  1897,  where  the 
court  held  (Justices  White,  Shiras,  Field  and  Gray  dissenting), 
that  the  agreement  of  the  Trans-Missouri  Freight  Association 
for  the  purpose  of  mutual  protection  by  establishing  and  main- 
taining reasonable  rates  on  all  freight  traffic,  both  through 
and  local,  between  competing  carriers,  was  an  unlawful  com- 
bination within  the  meaning  of  the  Act.  It  was  strongly  urged 
in  this  case  that  the  Act  did  not  apply  to  railroads,  that 
the  House  of  Representatives  in  Congress  had  voted  down  an 
amendment  making  it  so  applicable,  and  the  Act  was  passed 
finally  without  this  amendment.  But  the  Court  said  that  the 
debates  in  Congress  were  not  the  proper  source  of  information 
to  discover  the  meaning  of  a  statute,  and  that  as  all  combina- 
tions, in   the  form  of  trusts  or  otherwise  were  prohibited,  the 


:§  317.]  THE    ANTI-TRUST    ACT    OF    1S90.  351 

limitation  was  not  confined  to  any  specific  form  of  combina- 
tion restraining  competition. 

This  ruling  was  reaffirmed  at  the  following  term  with  the 
same  division  of  'the  court  (Justice  Field  having  retired  and 
his  successor  Justice  McKenna  not  sitting),  in  the  Joint  Traffic 
Association  case,  171  U.  S.  505,  13  L.  Ed.  259.  This  case  was 
sought  to  be  distinguished  from  the  Trans-Missouri  Freight 
Association  case,  on  the  ground  that  the  latter  conferred  an 
•unlimited  power  to  fix  rates  in  the  first  instance,  while  in  the 
Joint  Traffic  Association  case  the  agreement  started  out  with 
the  rates  fixed  by  each  company  itself  and  filed  with  the  In- 
terstate Commerce  Commission.  The  Court  however  said  that 
■the  distinction  was  unimportant,  as  the  intent  and  direct  effect 
of  each  agreement  was  the  same,  that  is,  to  maintain  through 
the  elimination  of  competition,  higher  rates  than  would  other- 
wise prevail,  and  this  agreement  also  was  declared  violative 
■of  the  Act. 

These  rulings  as  to  the  applicability  of  the  Act  to  interstate 
railroads  were  again  reaffirmed  in  the  Northern  Securities  case, 
193  U.  S.  197,  48  L.  Ed.  679,  where  the  Court,  four  judges  dis- 
senting, held  that  the  organization  of  a  New  Jersey  corpora- 
tion as  a  "  holding  corporation  "  for  the  shares  of  competing 
interstate  railroads  was  an  illegal  combination  and  in  restraint 
•of  interstate  commerce. 

§  317.  Unlawful  combinations  in  commerce  other  than 
transportation— The  Addyston  Pipe  Trust  case. — The  lead- 
ing case  as  to  the  application  of  the  statute  to  unlawful  com- 
binations other  than  railroads,  is  Addyston  Pipe  &  Steel  Co. 
v.  United  States,  175  U.  S.  211,  41  L.  Ed.  136,  wherein  the 
Court  unanimously  affirmed  the  judgment  of  the  Circuit  Court 
of  Appeals.  29  C.  C.  A.  141,  85  Fed.  Pep.  271.  In  this  case 
•the  Court  held  the  agreement  of  certain  pipe  manufacturers 
void  under  the  Act,  on  the  ground  that  the  purpose  of  the  combi- 
nation directly  and  by  means  thereof  was  to  increase  the  price 
at  which  pipe  should  be  sold  within  the  territory  and  to  abol- 
ish all  competition  between  the  parties.  The  Court  found  that 
the  output  and  price  were  regulated  so  as  to  deprive  the  public 
in  a  large  territory  of  the  advantages  accruing  from  proximity 
•of  pipe   factories,  and  that   the   prices    were   kept   just  low 


oo'l  THF,    ANTI-TRUST    ACT    OF    1S90.  [SECTION  1. 

enough  to  prevent  competition  by  eastern  manufacturers,  the 
parties  agreeing  to  sell  only  at  prices  fixed  by  their  committee,, 
and  the  highest  bidder  at  a  secret  auction  became  the  lowest 
bidder  at  a  public  letting. 

The  Court  laid  down  the  rule  in  this  case  that  when  the  di- 
rect immediate  and  intended  effect  of  a  contract  and  combina- 
tion among  the  dealers  in  a  commodity  was  the  enhancement 
of  the  price  and  the  suppression  of  competition,  it  amounted 
to  a  restraint  of  trade  in  the.  commodity,  even  though  con- 
tracts at  the  enhanced  price  were  made  and  it  was  not  a  com- 
plete monopoly. 

§  318.     The  California  Tile  Trust  case.— The   principle 
laid  down  in  the  Addyston  case  was  applied   by  the  Supreme 
Court  in  Montague  v.  Lowry,  193  U.  S.  38,48  L.  Ed.  608,  where 
an  association  formed  in  California  by  the  manufacturers  of 
and  dealers  in  tiles,  mantels  and  grates  was  held  obnoxious  to 
the  Act.     Membership  in  the  association    was  prescribed  by 
rules  and  dependent  on  conditions,  one  of  which  was  the  car- 
rying  of  at  least  three  thousand  dollars   worth  of  stock,  and 
whether  applicants  were  admitted  or  not  was  a  matter  of  ar- 
bitrary decision.     The  dealers  in  the  association  agreed  not  to 
purchase  materials  from   manufacturers  who  were  not  mem- 
bers and  not  to  sell  unset  tiles  to  anyone  other  than  members 
for   less   than   list   prices,  which    were  fifty  per   cent   higher 
than  the   prices   to  members;    and    the    manufacturers  who 
were  residents  of  states  other  than  California  agreed  not  to  sell 
to  any  one  other  than   members,  violations  of  the  agreement 
rendering  the  members  subject  to  forfeiture  of  membership. 
The  Court  ruled  without  dissent,  that  although  the  sales  of 
unset  tiles  were  within  the  state  of  California  and  although 
such  sales  constituted  a  very  small  portion  of  the  trade  in- 
volved, the  agreement  of  the  manufacturers  without  the  state 
not  to  sell  to  anyone  but  members  was  part  of  a  scheme  which 
included  the  enhancement  of  the  prices  of  unset  tiles  by  deal- 
ers within  the  state,  and  that  the  whole  thing  was  so   bound 
together  that  the  transactions  within  the  state  were  insepar- 
able, and  became  a  part  of  the  purpose  which  when  carried  out 
amounted  to  and  was  a  combination  in  restraint  of  trade  and 
commerce.     The  agreement  therefore  was  brought  within  the 


§§   319,  320.]  THE    ANTI-TRUST    ACT    OF    1890.  353 

rule  declared  in  the  Addyston  case  and  distinguished  from  the 
Hopkins  and  Anderson  cases,  infra. 

§  319.     The  Tennessee,  California  and  Ohio  Coal  cases. — 

The  same  construction  and  application  of  the  Act  has  been 
made  by  the  Federal  Circuit  Courts.  In  United  States  v.  Jel- 
ico  Mountain  Coal  &  Coke  Co.,  46  Fed.  Rep.  432,  the  United 
States  Circuit  Court  for  Tennessee  held  void  an  agreement  be- 
tween coal  mining  companies  operating  chiefly  in  one  state 
and  the  deliveries  of  the  coal  in  another  state,  creating  a  coal 
exchange  and  fixing  the  price  for  the  coal  at  the  mines,  and 
the  margin  of  profit  to  the  dealer,  and  enforcing  the  same  by 
fines. 

In  United  States  v.  Coal  Dealers  Association  of  Cal. ,  85  Fed 
Rep.  252  (N.  D.  of  Cal.  1898),  an  unincorporated  association 
of  coal  dealers,  regulating  distribution  and  prices  in  interstate 
coal  traffic,  was  adjudged  illegal. 

In  United  States  v.  Chesapeake  &  Ohio  Fuel  Co.,  105  Fed. 
Rep.  93,  the  Circuit  Court  for  the  southern  district  of  Ohio 
followed  the  Addyston  Pipe  &  Steel  Co.  case  in  annulling  a 
contract  made  by  a  corporation  to  take  the  entire  product  of 
a  number  of  producing  firms  and  corporations  engaged  in  the 
mining  of  coal,  intending  to  sell  the  same  at  not  less  than  a 
price  to  be  fixed  by  an  executive  committee,  and  to  account 
and  pay  over  to  the  parties  the  entire  proceeds  above  a  fixed 
sum  to  be  retained  as  a  compensation,  the  stated  purpose  being 
to  enlarge  the  western  market.  The  Court  said  that  the  agree- 
ment  whereunder  shipments  were  to  be  made  in  that  and  other 
states  was  one  that  affected  interstate  commerce  and  subject 
to  the  provisions  of  the  Anti-Trust  Act,  and  that  it  was  no  de- 
fense that  the  agreement  had  not  in  fact  been  productive  of 
injury  to  the  public,  or  even  that  it  had  been  beneficial,  enab- 
ling the  combination  to  compete  for  the  business  of  a  wider 
field. 

§  320.  The  Chicago  Meat  Trust  case.— The  Act  was 
applied  in  the  United  States  Circuit  Court  for  the  northern 
district  of  Illinois  in  the  so-called  Meat  Trust  case,  United 
States  v.  Swift,  122  Fed.  Rep.  529,  decided  in  April,  1903. 
The  bill  in  this  case  set  out  that  the  defendants  controlled 
sixty  per  cent,  of  the  trade  and  commerce  in  fresh  meats  in 
23 


354  THE    ANTI-TRUST    ACT    OF    1S90.  [SECTION  1. 

the  United  States,  buying  the  live  stock  from  different  parts 
of  the  United  States,  converting  it  into  fresh  meats  and  then 
shipping  the  meats  to  their  agents  to  be  sold  to  consumers  in 
different  parts  of  the  United  States.     The  Court  said  that  the 
purchases,  shipments  and  transportation  were  commercially 
interdependent,    and  that   it  was  immaterial  that  the  fresh 
meats  in  the  hands  of  the  agents  of  the  defendants  were  sub- 
ject to  ordinary  state  taxation.     The  Court  also  said  that  the 
allegations  of  the  bill  of  an  unlawful  combination  to  the  effect 
that  the  purchasing  agents  were  required  to  refrain  from  bid- 
ding against  each  other,  and  in  bidding  up  at  times  so  as  to 
induce  large  shipments  and  agreeing  upon  prices  to  be  adopted 
and  restrictions  upon  the  quantities  of  meats  to   be  shipped, 
and  the  making  of  agreements  between  transportation  compa- 
nies for  rebates  and  discriminating  rates,  was  sufficient  to  show 
a  violation  of  the  law.     The  demurrer  was  overruled  and  the 
motion  for  an  injunction  was  sustained.     This  judgment  was 
affirmed  by  the  Supreme  Court  (no  dissent),  January  30,  190o, 
'.  |  68. 
§  321.     The  Washington  Shingle  Trust  case. —  In  Gibbs 
v.  McXeeley  etal,  55  C.  C.  A.  TO,  118  Fed.  Rep.  120,  60  L.  R. 
A.  152 (ninth  circuit,  1902,  reversing  107  Fed.  Rep.  210  and  102 
Fed.  Rep.  594),  it  was  held  that  an  association  of  manufacturers 
and  dealers   in  red  cedar  shingles  in  the  State  of  Washing- 
ton formed  for  the  purpose  of  controlling  the  production  and 
sale  of  such  shingles,  which  are  made  only  in  the  state,  but  are 
principally  sold  and  used  in  other  states,  and  by  its  action 
in  closing  the  mills  of  its  members,   has  reduced  the  produc- 
tion and  has  also  arbitrarily  increased  the  prices  at  which  the 
pro  luct  is  sold,  is  a  combination  in  restraint  of  commerce,  in 
violation  of  the  Act  of  1890.     The  Court  applied  the  rule  of  the 
Knight  and  Addyston  cases,  and  said  that  it  was  not  essen- 
tial for  a  contract  to  refer  expressly  to  interstate  commerce, 
if  its   purpose  and   effect    were    necessarily  to  restrain   such 
commerce. 

§  322.  Incidental  restraint  of  trade  not  violative  of  the 
Act. —  The  contract  condemned  by  the  statute  is  one  whose 
direct  and  immediate  effect  is  a  restraint  upon  that  kind  of 
trade  or  commerce  which  is  interstate.  It  does  not  include 
regulations  which  are  nothing  more  than  a  charge  for  a  local 


§  o23.]  THE  ANTI-TRUST  ACT  OF  1890.  355 

facility  provided  for  the  transaction  of  commerce,  nor  does  it 
include  an  agreement  among  business  men  for  the  better  con- 
duct of  their  own  business  which  incidentally  effects  interstate 
commerce.'  The  leading  cases  on  this  subject  are  those  decided 
in  relation  to  the  Kansas  City  Live  Stock  Exchange,  Hopkins 
v.  United  States,  171  LT.  S.  578,  43  L.  Ed.  290,  296,  and  the 
Traders-  Live  Stock  Exchange  of  Kansas  City,  171  U.  S.  <;o4,  43 
L.  Ed.  300,  wherein  the  Supreme  Court  reversed  the  judgment 
of  the  Circuit  Court  in  S2  Fed.  Rep.  529. 

§  323.  The  Kansas  City  Live  Stock  Exchange  cases. —  In 
the  first  of  these  cases  the  Court  held  that  the  Kansas  City 
Live  Stock  Exchange,  an  unincorporated  voluntary  association 
of  men  doing  business  at  the  stock  yards  situated  partly  in 
Kansas  City,  Missouri,  and  partly  across  the  state  line  in  Kan- 
sas City,  Kansas,  doing  business  as  commission  merchants, 
receiving  consignments  of  cattle  under  rules  which  prohibited 
the  employment  of  agents  to  solicit  consignments  except  upon 
a  stipulated  salary,  and  forbidding  the  sending  of  prepaid  tel- 
egrams or  telephone  messages  as  to  the  conditions  of  the  mar- 
ket, and  providing  that  no  member  should  transact  business 
with  any  commission  merchant  of  Kansas  City  not  a  member 
of  the  Exchange,  or  that  any  person  violating  the  rules  or 
regulations  or  with  any  expelled  or  suspended  member  after 
notice  of  such  violation,  was  not  in  violation  of  the  Act.  The 
court  said  that  the  situation  of  the  yards  partly  in  Kansas  and 
partly  in  Missouri  was  a  fact  without  any  weight,  and  that 
such  business  was  not  in  fact  interstate  business  or  commerce. 
The  Association  merely  provided  facilities  for  the  transaction 
of  commerce.  There  must  be  some  direct  and  immediate  ef- 
fect upon  interstate  commerce  to  come  within  the  Act.  The 
Court  in  this  case  cited  a  number  of  agreements  incidentally 
affecting  commerce  which  would  not  be  included,  as  agree- 
ments among  land  owners,  enhancing  the  cost  of  transporting 
cattle,  or  that  of  railroad  employees  to  cease  from  work  unless 
paid  a  certain  compensation,  saying  that  these  agreements 
Would  enhance  the  cost  of  interstate  commerce,  but  only  indi- 
rectly and  incidentally. 

In  Anderson  v.  United  States,  supra,  the  defendants  were 
not  commission  men,  but  were  themselves  purchasers  of  cattle 
•on  the  market.     The  members  bore  the  same  relation  to  the 


350  THE    ANTI-TRUST    ACT    OF    1S90.  [SECTION  1. 

Association  and  they  bad  carried  on  the  same  business  as  they 
carried  on  in  the  Hopkins  case.  The  court  said  it  was  not 
called  upon  to  decide  whether  the  defendants  were  or  were 
not  engaged  in  interstate  commerce,  because  the  agreement 
was  not  one  in  restraint  of  trade,  nor  was  there  any  combination 
to  monopolize  or  attempt  to  monopolize  such  trade  within  the 
meaning  of  the  Act. 

The  Court  in  this  latter  case  laid  down  the  general  rule  that 
where  the  subject-matter  of  the  agreement  does  not  directly 
relate  to  and  act  upon  and  embrace  interstate  commerce,  and 
where  the  anticipated  facts  clearly  show  that  the  purpose  of 
the  agreement  was  not  to  regulate,  obstruct  or  restrain  that 
commerce,  but  that  it  was  entered  into  with  the  object  to 
properly  and  fairly  regulate  the  transaction  of  the  business  in 
which  the  parties  to  the  agreement  were  engaged,  such  agree- 
ment will  be  upheld  as  not  within  the  statute,  where  it  can  be 
seen  that  the  character  and  terms  of  the  agreement  are  all 
calculated  to  attain  the  purposes  for  which  it  was  formed  and 
where  the  effect  of  its  formation  and  enforcement  upon  inter- 
state trade  and  commerce  is  in  any  event  indirect  and  incidental, 
and  not  its  purpose  or  object.  These  cases  were  decided 
with  only  one  dissent,  that  of  Mr.  Justice  Harlan. 

See  also  Field  v.  Barber  Asphalt  Co.,  194  IT.  S.  CIS,  4S  L. 
Ed.  1142,  where  the  Court  held  that  the  specification  in  an 
ordinance,  that  a  particular  kind  of  asphalt  produced  only  in  a 
foreign  country  should  be  used  in  a  city  pavement,  was  valid 
under  the  laws  of  the  state  and  did  not  violate  the  Act  of  1890, 
or  any  Federal  right. 

^  :J24.  Agreements  not  within  the  Act. —  Agreements  of 
manufacturers  or  dealers  with  their  customers  for  the  preven- 
tion of  dealing  with  competitors  by  such  customers  through 
the  payment  of  rebates  to  them  conditioned  on  their  not  so 
dealing  (Whitwell  v.  Continental  Tobacco  Co.,  00  C.  C.  A.  290, 
!  l'.~.  led.  Pep.  454),  and  agreements  with  customers  res- 
tricting sales  to  certain  territory  (Phillips  v.  iola  Portland 
Cement  Co.,  01  C.  A.  A.  19,  25  Fed.  Pep.  593),  nor  the  inci- 
dental restraint  of  trade  resulting  from  the  purchase  of 
competitors  (In  re  Greene,  52  Fed.  Rep.  104),  are  not  within 
the  Act.  See  also  In  re  Corning,  United  States  v.  Greenhutt, 
:.l  led.  Pep.  205,  and  in  re  Tyrrell,  51  Fed.  Pep.  213. 

An  agreement  between  all  the  lumber  dealers  of  a  city  to 


§§  325,326.]  THE   ANTI-TKUST   ACT   OF    1890.  357 

raise  and  maintain  the  price  of  lumber  to  local  customers  and 
to  refuse  to  sell  to  consumers  who  purchased  supplies  from 
outside  mills,  some  of  such  mills  supplying  the  local  market 
being  situated  in  another  state,  was  held  in  Ellis  v.  Inman, 
124  Fed.  Eep.  950,  not  to  be  in  violation  of  the  Anti-Trust 
Act,  as  the  effect  upon  interstate  commerce  was  indirect  and 
incidental  only. 

In  Dueber  Watch  Case  Manufacturing  Compan}'  v.  Howard 
Watch  &  Clock  Co.,  55  Fed.  Eep.  851  (S.  Dist.  of  K  Y.), 
affirmed,  though  on  different  grounds  and  with  dissent,  by  the 
Circuit  Court  of  Appeals  in  66  Fed.  Eep.  637,  an  agreement 
by  a  number  of  manufacturers  and  dealers  in  watch  cases  to 
fix  an  arbitrary  price  on  their  goods,  and  not  to  sell  the  same 
to  any  one  buying  watches  of  the  plaintiff,  was  held  not  viola- 
tive of  the  statute,  there  being  no  averment  of  absorbtion,  or  in- 
tention to  absorb  or  control  the  entire  market  or  any  large 
part  thereof. 

This  case  it  will  be  observed  was  decided  prior  to  the  defi- 
nite construction  of  the  Act  by  the  Supreme  Court.. 

§  325.  Certain  agreements  not  to  enter  into  competition 
not  within  the  Act. —  In  Booth  v.  Davis,  127  Fed.  Eep.  875, 
the  Circuit  Court  for  the  eastern  district  of  Michigan  held 
that  the  act  of  July  2,  1890  had  no  application  to  a  contract 
by  which  the  stockholders  of  a  corporation  engaged  in  dealing 
in  fish  at  different  places  in  consideration  of  the  business  and 
good  will  of  the  company  agreed  not  to  enter  into  competition 
in  such  business  for  a  term  of  ten  years.  The  Court  said  the 
contract  was  based  upon  a  good  consideration  and  was  law- 
ful, and  the  right  of  the  purchaser  to  enforce  it  could  not  be 
effected  by  the  question  whether  he  had  conducted  such  busi- 
ness lawfully  or  not  since  its  purchase.  The  purchaser  there- 
fore, the  court  ruled,  had  the  right  to  enforce  this  covenant  by 
injunction  although  the  co-defendant  had  hired  the  defendant 
in  ignorance  of  the  contract  and  would  suffer  damages  if  de- 
prived  of  his  services. 

§  326.  Labor  combinations. — The  act  prohibits  any  com- 
bination or  conspiracy  in  restraint  of  interstate  commerce. 
It  was  held  In  re  Debs,  61  Fed.  Eep.  721,  U.  S.  Cir.  Ct.  N.  Dist. 
of  111.,  in  an  exhaustive  opinion,  that  the  original  design  in 
the  Act  was  to  suppress  trusts  and  monopolies  in  the  form  of 
trusts,  which  of  course  would    be  of  a  contractual  character, 


358  THE    ANTI-TRUST    ACT    OF    Is!'''.  [SECTION'   1. 

but  that  it  was  equally  clear  that  a  further  and  a  more  com- 
prehensive purpose  came  to  be  entertained  and  was  embodied 
in  the  final  form  of  the  enactment.  Combinations  were  con- 
demned not  only  when  they  took  the  form  of  trusts,  but  in 
whatever  form  found,  if  they  be  in  restraint  of  trade,  and  that 
was  the  effect  of  the  words  "or  otherwise.1' 

The  Debs  case  was  taken  to  the  Supreme  Court,  where  the 
judgment  of  the  Circuit  Court  was  affirmed,  15S  U.  S.  564,  39 
L.  Ed.  1092,  on  the  broader  ground  of  the  general  power  of 
the  Federal  (Government  in  respect  to  interstate  commerce. 
The  court  said  however  that  this  was  not  because  it  differed 
from  the  Circuit  Court  in  its  construction  of  the  statute  of 
LS90. 

In  United  States  v.  Working-men's  Amalgamated  Council  of 
New    Orleans,    54    Fed.  Rep.  994,  the    United    States  Circuit 
Court  of  Louisiana  held  that  combinations  of  laborers  as  well 
as  of  capitalists  in  restraint  of    interstate  commerce   was   vio- 
lative of  the  Act,  and  that  it  was  no  defense  that  the  origin 
and    general    purpose    of   a   strike    were  innocent   and    law- 
ful, if  they  had  been  turned  into  an  unlawful  purpose  for  the 
restraint  of  interstate  and  foreign  commerce,  and  that  a  gen- 
eral strike  for  the  discontinuance  of  labor  in  all  departments 
of  business,  including  interstate  and   foreign  commerce,  en- 
forced by  violence  and  intimidation  for  the  sake  of  enforcing 
the  employment  of  none  but  union   men,   was  unlawful  and 
properly  enjoined.     See  also  Waterhouse  v.  Comer,  55  Fed. 
Rep.  L49;  United  States  v.  Elliott,  04  Fed.  Rep.  27,  Phillips,  J. 
in   western  district  of  Missouri;    United  States  v.  Agler,   62 
Fed.   Rep.    S20,  Baker,  J.,  in  District  of   Indiana;  Thomas  v. 
Railroad  Co.,  62  Fed.  Rep.  803,  Taft,  J.,  in  southern  district 
of  Ohio;  Toledo,  etc.  It.  Co.  v.  Pennsylvania  Co.,  et  al,  54  Fed. 
Rep.    730,   Taft,    J.,  in    northern   district   of    Ohio;  Same  v. 
Same.  54  Fed.  Rep.  746,  Ricks,  J.     Charge  to  Grand  Jury  by 
Grossciip,  J.,  62  Fed.  Etep.  S28  and  by  Ross  J.,  6'2  Fed.   Rep. 
834.     See  supra,  chapter  IV;  also  sections  Sand  10  Interstate 
( Jommerce  Act. 

The  contrary  view  was  taken  in  United  States  v.  Patterson, 
55  Fed.  Rep.  605;  but  with  the  exception  of  this  decision  the 
ruling  in  the  Debs  case  was  followed  by  the  other  Circuit 
( lourts. 


$§  327-328.]  THE   ANTI-TRUST   ACT   OF   1890.  359 


Section  2. 

§  327.     Section  2  of  the  Act, 
328.     Criminal  procedure  under  the  Act. 

§  327.  Persons  engaging  in  monopolies  guilty  of  mis- 
demeanor.— Sec.  2.  Every  person  who  shall  monopolize,  or 
attempt  to  monopolize,  or  combine  or  conspire  with  any  other 
person  or  persons,  to  monopolize  any  part  of  the  trade  or  com- 
merce among  the  several  States,  or  with  foreign  Nations,  shall 
be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction  there- 
of, shall  be  punished  by  tine  not  exceeding  five  thousand  dol- 
lars, or  by  imprisonment  not  exceeding  one  year,  or  by  both 
said  punishments,  in  the  discretion  of  the  court. 

§  328.  Criminal  procedure  under  the  Act. —  The  first 
section  of  the  Act  condemned  two  distinct  things,  a  con- 
tract in  restraint  of  trade  and  a  combination  or  conspiracy  in 
restraint  of  trade,  and  it  was  held  in  Rice  v.  Standard  Oil  Co., 
134  Fed.  Rep.  404,  Dist.  K  J.,  January  1905,  that  these  dis- 
tinct offenses  should  not  be  confused  either  in  indictments  or 
in  civil  suits,  citing  United  States  v.  Cadwallader,  59  Fed.  Rep. 
077.  The  second  section  makes  a  distinct  offense,  that  of  mo- 
nopolizing or  attempting  to  monopolize  any  part  of  trade  or 
commerce  among  the  States. 

As  to  what  constitutes  a  monopoly  under  this  section  and 
the  distinction  between  monopoly  in  law  and  in  fact,  see 
supra,  chapter  IV,  §§  09,  70. 

The  Act  does  not  define  what  is  a  monopoly  any  more  than 
it  does  what  is  a  conspiracy  in  restraint  of  trade,  and  resort 
must  therefore  be  had  to  common  law  for  a  definition  of  these 
general  terms.  In  re  Green,  52  Fed.  Rep.  104.  It  is  insufficient 
in  an  indictment  to  simply  follow  the  language  of  the  Act, 
for  the  reason  that  the  words  of  the  statute  do  not  of  them- 
selves fully,  directly  and  clearly  set  forth  the  elements  neces- 
sary to  constitute  the  offense  intended  to  be  punished. 

For  the  essentials  of  indictment  for  violation  of  the  Act,  see 
In  re  Corning  and  United  States  v.  Greenhutt  et  al,  51  Fed. 
Rep.  205,  northern  district  of  Ohio,  1892,  and   In  re  Tyrrell, 

51  Fed.  Rep.  213,  Circuit  Court  southern  district  of  New  York, 
1892.     In  re  Greene,  Circuit  Court  southern  district  of  Ohio, 

52  Fed.  Rep.  104,  1892;  United  States  v.  Nelson,  52  Fed.  Rep. 


?60 


THE    ANTI-TRUST    ACT    OF    1890.  [SECTION  2. 


CAQ,  District  Court  district  of  Minnesota,  1892;  and  charge  to 
theGrand  Jury  by  Grosscup,  J.,  62  Fed.  Rep.  828  (1894),  and  by 
Ross,  J.,  62  Fed.  Eep.  S31,  in  southern  district  of  California, 

1894. 

It  was  held  in  these  cases  that  it  was  not  sufficient  to  simply 
follow  the  language  of  the  statute,  but  that  the  indictment 
must  contain  a  certain  description  of  the  offense  and  a  state- 
ment of  the  facts  constituting  the  same. 


5§  320,  330.]  THE    ANTl-TKUST    ACT    OF    1800.  361 


Section  3. 

§  329.     Section  3  of  the  Act. 
330.     Territories  and  District  of  Columbia  included. 

§  329.  Section  3  of  the  Act. —  Sec.  3.  Every  contract,  com- 
bination in  form  of  trust  or  otherwise,  or  conspiracy,  in  re- 
straint of  trade  or  commerce  in  any  Territory  of  the  United 
States  or  of  the  District  of  Columbia,  or  in  restraint  of  trade 
or  commerce  between  any  such  Territory  and  another,  or 
between  any  such  Territory  or  Territories  and  any  State  or 
States  or  the  District  of  Columbia,  or  with  foreign  nations, 
or  between  the  District  of  Columbia  and  any  State  or  States 
and  foreign  nations,  is  hereby  declared  illegal.  Every  person 
who  shall  make  any  such  contract  or  engage  in  any  such  com- 
bination or  conspiracy  shall  be  deemed  guilty  of  a  misde- 
meanor, and  on  conviction  thereof,  shall  be  punished  by  fine 
not  exceeding  five  thousand  dollars,  or  by  imprisonment  not 
exceeding  one  year,  or  by  both  said  punishments,  in  the  dis- 
cretion of  the  court. 

§  330.     Territories  and  District  of  Columbia  included. — 

This  section,  it  will  be  seen,  differs  from  section  1  only  in  the 
fact  that  it  includes  in  the  contracts  in  restraint  of  trade  de- 
clared illegal  and  criminal  not  only  those  made  in  commerce 
among  the  several  States  and  with  foreign  nations,  but  also 
those  made  in  any  Territory  of  the  United  States  or  of  the 
District  of  Columbia,  or  between  any  such  Territory  and  an- 
other, or  between  any  such  Territory  or  Territories  and  any 
State  or  States,  and  also  between  the  District  of  Columbia  and 
any  State  or  foreign  States.  This  inclusion  of  contracts  in  a 
Territory  or  in  the  District  of  Columbia  is  not  under  the  auth- 
ority of  the  commerce  clause  of  the  Constitution,  but  under 
the  general  governmental  power  vested  in  Congress  over  the 
Territories  of  the  United  States  and  over  the  District  of  Co- 
lumbia. Congress  in  the  exercise  of  its  power  to  organize  and 
govern  its  territories  combine  the  Federal  and  State  authority, 
Mormon  Church  v.  United  States,  136  U.  S.  1.  Congress  is 
also  vested  by  the  Constitution  with  the  exclusive  legislative 
authority  over  the  District  of  Columbia.  Constitution  of  U. 
S.,  Art.  IY,  Sec.  3,  Par.  2;  Art.  I,  Sec.  8.  This  authority  was 
not  specifically  exercised  in  the  Interstate  Commerce  Act.  See 
supra,)  §  106. 


362  THE    ANTI-TRUST    ACT    OF    1890.  [SECTION  4. 


Section  4. 

Page 

§  331.     Section  4  of  the  Act 362 

333.     Procedure  in  equity  under  the  Act    362 

333.  Right  to  statutory  injunction  limited  to  the  government 363 

334.  A  State  cannot  enjoin  under  the  Act ..  363 

§  331.  Courts  may  prevent  and  restrain  violations. —  Sec. 
4.  The  several  circuit  courts  of  the  United  States  are  hereby 
invested  with  jurisdiction  to  prevent  and  restrain  violations 
of  this  act;  and  it  shall  be  the  duty  of  the  several  district  at- 
torneys of  the  United  States,  in  their  respective  districts,  under 
the  direction  of  the  Attorney-General,  to  institute  proceedings 
in  equity  to  prevent  and  restrain  such  violations.  Such  pro- 
ceedings may  be  by  way  of  petition  setting  forth  the  case  and 
praying  that  such  violation  shall  be  enjoined  or  otherwise  pro- 
hibited. When  the  parties  complained  of  shall  have  been  duly 
notilied  of  such  petition  the  court  shall  proceed,  as  soon  as  may 
be,  to  the  hearing  and  determination  of  the  case;  and  pending- 
such  petition  and  before  final  decree  the  court  may  at  any 
time  make  such  temporary  restraining  order  or  prohibition  as 
shall  be  deemed  just  in  the  premises. 

§  332.  Procedure  in  equity  under  the  Act. — The  rightof  the 
United  States  to  proceed  by  injunction  against  illegal  combina- 
tions under  this  Act  has  been  uniformly  sustained.  Thus  in  the 
Trans-Missouri  Freight  Association  case  the  Court  said  that 
the  Government  had  the  power  to  bring  the  suit  to  enjoin  the 
association  from  proceeding,  although  the  association  had  been 
dissolved  pending  the  suit  before  the  decree  was  entered.  This 
ruling  was  followed  in  the  other  cases  cited,  the  Joint  Traffic 
Association  case  and  the  Northern  Securities  case.  In  the 
latter  case  the  court  enjoined  the  corporation  organized  under 
state  laws  from  exercising  the  powers  acquired  by  virtue  of 
the  acquisition  of  the  stock  of  the  subsidiary  companies. 

In  such  a  suit  filed  by  the  United  States,  a  restraining  order 
may  be  issued  without  notice,  and  where  the  unlawful  com- 
bination acts  as  an  unincorporated  association,  it  is  sufficient 
that  the  association  with  a  number  of  its  officers  and  members 
are  made  parties;  it  is  not  necessary  that  all  of  its  numerous 
membership  should  be  made  parties.  United  States  v.  Coal 
1  >ealers  Assoc,  of  Cal.,  S5  Fed.  Rep.  252  (N.  Dist.  of  Cal.,  1898). 


§§  333-334.]      THE  ANTI-TRUST  ACT  OF  1S90.  363 

§333.  Right  to  statutory  injunction  limited  to  the  Govern- 
ment.—  Under  this  Act  a  court  of  equity  is  not  authorized  to 
entertain  a  bill  by  a  private  party  to  enforce  its  provisions,  the 
remedy  being  limited  to  the  Government  of  the  United  States. 
See  Gulf,  Colorado  &  Santa  Fe  R.  Co.  v.  Miami  Steamship  Co., 
30  C.  C.  A.  142,  86  Fed.  Rep.  407;  Southern  Indiana  Express 
Co.  v.  United  States  Express  Co.,  et  al.,  35  C.  C.  A.  172,  92 
Fed.  Rep.  1022;  Pidcock  v.  Harrington,  64  Fed.  Rep.  S21; 
Block  v.  Standard  Dist.  Co.,  95  Fed.  Rep.  978. ' 

The  court  said  in  the  first  cited  case  however  that  it  did  not 
doubt  the  general  jurisdiction  of  the  Supreme  Court  as  a  court 
of  equity  to  afford  preventive  relief  in  a  proper  case  against 
threatened  injury  about  to  result  to  an  individual  from  any 
unlawful  agreement,  combination  or  conspiracy  in  restraint  of 
trade.  The  distinction  is  between  the  statutory  remedy  con- 
ferred by  the  Act  and  the  general  jurisdiction  of  the  court  of 
equity  to  grant  equitable  relief,  where  irreparable  injury  or 
other  conditions  for  the  exercise  of  equity  jurisdiction  exists. 

In  this  latter  class  of  cases  where  the  general  jurisdiction  of  a 
court  of  equity  is  invoked,  and  no  rights  under  the  constitution 
and  laws  of  the  United  States  are  in  question,  the  jurisdiction  of 
the  Federal  Court  must  be  based  upon  the  diverse  citizenship  of 
the  parties.  See  Hagan  v.  Blindell,  6  C.  C.  A.  86,  56  Fed. 
Rep.  G'36,  affirming  54  Fed.  Rep.  40. 

Where  however  the  equity  jurisdiction  of  a  Circuit  Court 
of  the  United  States  is  invoked  on  the  ground  of  a  property 
right  under  the  Constitution  or  laws  of  the  United  States,  for 
protection  against  any  illegal  combination  threatening  such 
property  right,  the  Court  would  have  jurisdiciion  irrespective 
of  diverse  citizenship.    See  section  8,  Interstate  Commerce  Act. 

§  334.  A  State  cannot  enjoin  under  the  Act. —  Neither  can 
a  State  proceed  under  the  Act  by  injunction.  Thus  in  the 
State  of  Minnesota  v.  Northern  Securities  Co.,  194  U.  S.  48, 
48  L.  Ed.  870,  the  Supreme  Court  held  that  the  State  of  Minne- 
sota could  not  maintain  a  suit  in  its  political  character  to  en- 
force the  Anti-Trust  Act  of  Congress,  as  the  statute  confines 
the  action  to  suits  by  the  several  district  attorneys  of  the 
United  States  in  their  several  districts  under  the  direction  of 
the  Attorney-General.     The  Court  said  that  the  purpose  was 


3G1  THE    ANTI-TRUST    ACT    OF    1890.  [SECTION  4. 

to  secure  the  uniformity  of  the  enforcement  of  the  Act  so  far 
as  direct  procedure  in  equity  was  concerned,  according  to  the 
uniform  plan  applicable  throughout  the  entire  country.  This 
case  had  been  brought  in  the  State  court  and  removed  by  the 
defendant  to  the  Circuit  Court  of  the  United  States  on  the 
"•round  that  it  was  one  arising  under  the  Constitution  and  laws 
of  the  United  States.  The  Circuit  Court  sustained  the  juris- 
diction and  dismissed  the  bill  upon  the  merits.  123  Fed.  Rep. 
692.  But  the  Supreme  Court  reversed  the  decree,  with  direc- 
tions to  remand  the  case  to  the  State  court  on  the  ground  that 
the  Circuit  Court  of  the  United  States  could  not  acquire  juris- 
diction of  such  proceeding,  although  both  parties  urged  the 
court  to  take  jurisdiction,  as  the  State  of  Minnesota  was  not  a 
citizen  within  the  meaning  of  the  Constitution,  and  there  was 
no  diverse  citizenship  to  sustain  the  jurisdiction  of  the  federal 
court. 


§  335.]  THE  ANTI-TKDST  ACT  OF  1890.  3G5 


Section  5. 
§  335.     Section  5  of  the  Act. 

§  335.  Additional   parties   may   be  summoned.— Sec.   5. 

Whenever  it  shall  appear  to  the  court  before  which  any  pro- 
ceeding under  section  four  of  this  act  may  be  pending  that 
the  ends  of  justice  require  that  other  parties  should  be  brought 
before  the  court,  the  court  may  cause  them  to  be  summoned, 
whether  they  reside  in  the  district  in  which  the  court  is  held 
or  not;  and  subpoenas  to  that  end  may  be  served  in  any  dis- 
trict by  the  marshal  thereof. 

The  comprehensive  jurisdiction  vested  in  the  court  under 
this  section  is  enforced  by  the  provisions  of  the  Act  of  Febru- 
ary 11,  1903,  known  as  the  Expedition  Act,  infra,  §  347, 
whereunder  suits  in  equity  brought  by  the  United  States  may 
be  given  precedence  over  others  on  the  certificate  of  the  At- 
torney General  as  to  the  general  public  importance  of  the -suit. 


366  THE    ANTI-TRUST    ACT    OF    1S90.  [SECTION  G. 


Section  6. 

§  336.     Section  6  of  the  Act. 

337.     Enforcement  of  seizure  of  goods  under  section  G. 

§  330.  Seizure  and  condemnation  of  property. —  Sec.  6. 
Any  property  owned  under  any  contract  or  by  any  combina- 
tion, or  pursuant  to  any  conspiracy  (and  being  the  subject 
thereof)  mentioned  in  section  one  of  this  act,  and  being  in  the 
course  of  transportation  from  one  State  to  another,  or  to  a 
foreign  country,  shall  be  forfeited  to  the  Unite*!  States,  and 
may  be  seized  and  condemned  by  like  proceedings  as  those 
provided  by  law  for  the  forfeiture,  seizure,  and  condemnation 
of  property  imported  into  the  United  States  contrary  to  law. 

£  337.  Enforcement  of  seizure  of  goods  under  section  ('. 

The  seizure  of  goods  authorized  under  section  6  can  be  enforced 
only  by  the  procedure  like  to  that  provided  by  sections  3309- 
3391  R.  S.  U.  S.  for  the  forfeiture  of  goods  under  the  customs 
laws,  and  with  trial  by  jury.  There  is  no  reported  case  of 
such  proceeding  under  this  section.  The  seizure  cannot  be  en- 
forced in  an  equity  suit  by  the  United  States  under  section  4. 
Addyston  Pipe  &  Steel'Co.  v.  United  States,  29  C.  C.  A.  141, 
85  Fed.  Rep.  271. 

It  was  said  in  this  case  by  Taft,  J.,  that  the  only  remedy 
which  can  be  afforded  under  section  lis  a  decree  of  injunction. 


33S,  330.]  THE    ANTI-TRUST   ACT   OF    1800.  307 


Section  7. 

Page. 
§  338.     Section  7  of  the  Act 367 

339.  Private  actions  under  section  7  ...  307 

340.  Plaintiff  must  show  injury 368 

341.  A  State  is  not  a  "  person  or  corporation  "  under  section  7 369 

342.  Pleadings  under  section  7 369 

343.  Measure  of  damages  under  section  7 369 

344.  Limitations  in  private  actions 370 

345.  The  Act  as  a  defense  in  suits  by  alleged  illegal  combinations. .   370 

346.  The  Act  as  a  defense  in  patent  litigation  371 

347.  Self-incriminating  testimony  371 

§  338.  Persons  injured  may  recover  threefold  damages 
and  attorney's  fee. —  Sec.  7.  Any  person  who  shall  be  injured 
in  his  business  or  property  by  any  other  person  or  corporation 
by  reason  of  anything-  forbidden  or  declared  to  be  unlawful  by 
this  act,  may  sue  therefor  in  any  circuit  court  of  the  United 
States  in  the  district  in  which  the  defendant  resides  or  is  found, 
without  respect  to  the  amount  in  controversy,  and  shall  re- 
cover threefold  the  damages  by  him  sustained,  and  the  costs 
of  suit,  including  a  reasonable  attorney's  fee. 

§  339.  Private  actions  under  section  7. —  This  section 
was  construed  by  the  Supreme  Court  in  Montague  v.  Lowry, 
supra,  affirming"  the  judgment  of  the  Circuit  Court  of  Appeals 
for  the  Ninth  Circuit,  115  Fed.  Rep.  27,  and  of  the  Circuit 
Court  (1ST.  Dist.  of  Cal.)  106  Fed.  38,  for  treble  damages  and 
attorney's  fees  in  favor  of  a  firm  which  had  endeavored  to  pro- 
cure tiles  for  the  purposes  of  their  business  from  the  tile  manu- 
facturers, members  of  the  association,  who  refused  to  deal  with 
them  because  they,  the  plaintiffs,  were  not  members  of  the  asso- 
ciation. Plaintiffs  were  not  eligible  to  membership  in  the  asso- 
ciation, because  they  did  not  always  carry  stock  worth  $3,000, 
which  was  made  a  condition  of  eligibility  to  membership.  It 
was  claimed  that  this  provision  had  not  been  enforced.  But 
the  Court  said  there  was  nothing  to  prevent  its  enforcement  at 
any  time,  if  an  application  was  made  by  any  one  who  did  not 
iill  the  condition.  The  proof  showed  that  by  reason  of  the 
formation  of  the  association  plaintiffs  had  been  injured  in  their 
business,  because  they  were  unable  to  procure  tiles  from  the 
manufacturers  at  any  price  or  from  the  dealers  at  San  Fran- 
cisco at  less  than  the  list  price  which  was  more  than  fifty  per 


3t)S  THE    ANTI-TRUST    ACT    OF    1S90.  [SECTION  7. 

cent  above  the  price  at  which  members  of  the  association 
could  purchase  the  same. 

In  this  case  the  jury  found  a  verdict  for  $500  and  judgment 
was  rendered  for  treble  this  amount,  and  in  addition  thereto 
the  court  allowed  $750  for  attorney's  fees.  The  trial  lasted 
live  days.  The  Court  said  that  the  amount  of  the  attorney's 
fees  was  within  the  discretion  of  the  trial  court  reasonably  ex- 
ercised, and  that  the  discretion  was  not  abused. 

This  section  was  also  construed  by  the  Circuit  Court  of  Ap- 
peals  for  the  Sixth  Circuit,  127  Fed  Rep.  25,  in  City  of  At- 
lanta v.  Chattanooga  Foundry  &  Pipe  Co.  In  this  case  the 
recovery  by  a  municipal  corporation  engaged  in  operating 
water,  steam  and  lighting  plant,  from  which  revenue  was  de- 
rived, was  sustained  on  the  ground  that  it  was  a  business 
corporation  and  able  to  maintain  an  action  for  relief  under 
this  section  for  injury  to  its  business  by  combination  or  con- 
spiracy. 

Id  the  case  last  cited  the  Court  held  that  every  member  of 
an  illegal  combination  in  violation  of  the  Act  was  liable  for 
damages  to  the  party  injured,  and  it  was  immaterial  that  there 
was  no  direct  contract  between  plaintiff  and  defendant.  It 
was  also  immaterial  that  the  business  of  the  plaintiff  was  not 
interstate,  provided  the  transaction  by  which  the  purchase  was 
made  was  interstate. 

It  was  held  in  Bishop  v.  American  Preservers  Co.,  105  Fed. 
R  sp.  845,  that  the  Anti-Trust  law  did  not  authorize  an  action 
against  an  alleged  trust  corporation  by  one  who  was  a  party 
to  its  organization,  and  a  stockholder  thereof,  to  recover  dam- 
resulting  from  the  enforcement  by  it  of  the  rights  given 
it  by  the  alleged  unlawful  agreement,  and  that  the  bringing 
of  a  suit  in  replevin  by  the  company  against  the  plaintiff  was 
but  the  exercise  of  its  lawfui  right.  See  also  51  Fed.  Ptep. 
272. 

:  340.  Plaintiff' must  show  injury.  The  fact  of  an  ille- 
gal combination  in  an  industry  does  not  establish  a  right  of 
private  action  for  damages,  unless  plaintiff  shows  injury  di- 
rectly accruing  to  himself  by  reason  of  the  illegal  combina- 
tion: but  an  allegation  that  plaintiff  is  in  the  business  affected 
by  the  combination,  and  by  reason  thereof  is  unable  to  make 


§^  341-343.]  THE    ANTI-TRUST    ACT    OF    1890. 


369 


purchases  and  suffers  loss  thereby,  is  sufficient.  Gibbs  v.  Mc- 
Neeiey,  102  Fed.  Rep.  594,  reversed  in  55  C.  C.  A.  70,  118 
Fed.  Rep.  120,  60  L.  R.  A.  152. 

§  341.  A  State  is  not  a  "  person  or  corporation  "  under 
section  7. —  In  Lowenstein  v.  Evans,  69  Fed.  Rep.  908  (1895), 
a  demurrer  was  sustained  to  a  suit  filed  by  a  liquor  dealer  in 
South  Carolina  under  the  seventh  section  of  the  Act  against 
the  members  of  the  State  Board  of  Control  of  the  liquor  traf- 
fic, under  the  State  Dispensary  law,  alleging  that  the  State 
monopoly  of  the  liquor  business  was  in  violation  of  the  Act. 
The  court  said  that  a  State  is  not  a  "  person  "  or  "  corporation  " 
within  the  meaning  of  the  section. 

§  342.  Pleading's  under  section  7.— A  declaration  in  a  suit 
under  section  7  was  held  bad  for  indenniteness  and  uncer- 
tainty in  Rice  v.  Standard  Oil  Co.,  134  Fed.  Rep.  464,  District 
of  New  Jersey  (January,  1905),  which  alleged  in  a  single 
count  that  defendant  entered  into  a  "contract,  combination 
and  conspiracy,"  in  restraint  of  trade.  The  Court  said  that 
in  a  declaration  under  this  section,  plaintiff  must  aver,  not 
only  facts  showing  such  a  contract,  combination  or  conspiracy 
as  is  declared  by  the  Act  to  be  unlawful,  but  also  facts  showing 
that  by  reason  of  such  unlawful  thing  he  had  been  injured  in 
his  business  or  property.  The  Court  also  held  that  the  Act 
made  a  distinction  between  a  contract  and  a  combination 
or  conspiracy,  and  the  two  could  not  be  confused  either  in  a 
declaration  in  a  civil  proceeding  any  more  than  in  an  indict- 
ment in  a  criminal  proceeding.  That  is  they  could  not  be 
declared  upon  as  synonymous  terms  and  charged  in  a  single 
count. 

§343.  Measure  of  damages  under  section  7. —  The  meas- 
ure of  damages  which  a  party  is  entitled  to  recover  in  such 
an  action  is  the  difference  between  the  price  paid  and  the  rea- 
sonable price  under  natural  and  competitive  conditions.  See 
also  Montague  v.  Lowry,  supra. 

The  Court  said  in  the  City  of  Atlan-ta  case  that  the  plain 
intent  was  to  compensate  the  person  injured  and  that  the  en- 
largement of  compensation  by  the  provision  for  trebling  the 
amount  of  damages  did  not  constitute  the  action  a  penal 
action  within  the  meaning  of  section  1047  R.  S.,  U.  S.     The 

24 


370  THE    ANTI-TRUST    ACT    OF    1S90.  [SECTION  7. 

other  sections  of  the  Act  were  penal,  but  the  7th  section  was 
distinctly  compensatory. 

§  344.  Limitations  in  private  actions. — The  action  in  this 
case  was  brought  in  Tennessee,  and  it  was  held  subject  to  the 
Tennessee  statute  of  limitations  prescribing  the  limitation  of 
ten  years  for  certain  actions  and  in  all  other  cases  not  expressly 
provided  for.  The  Court  ruled  that  it  did  not  fall  within  the 
provision  of  the  Tennessee  statute  prescribing  a  limitation  of 
three  years  for  injuries  to  personal  or  real  property.  As 
to  limitations,  see  section  8  of  Interstate  Commerce  Act, 
supra. 

$  345.  The  Act  as  a  defense  in  suits  by  alleged  illegal 
combinations. — "While  it  is  a  general  rule  that  any  one  sued 
upon  a  contract  may  set  up  a  defense  that  it  is  a  violation 
of  an  Act  of  Congress,  Bement  v.  National  Harrow  Co.,  186 
U.  S.  70,  46  L.  Ed.  1058,  it  is  also  true  that  a  party  will  not  be 
permitted  to  confiscate  the  property  or  property  right  of 
another  on  the  ground  that  that  other  has  violated  the  Anti- 
Trust  Act.  See  Soda  Fountain  Co.  v  Green,  69  Fed.  Eep. 
333;  Columbia  AVire  Co.  v.  Freeman  Wire  Co.,  71  Fed.  Eep. 
302. 

There  is  is  no  provision  in  the  Anti-Trust  Act,  such  as  is 
contained  in  some  of  the  State  Anti-Trust  statutes,  making  the 
fact  of  membership  of  a  vendor  in  an  illegal  combination  a 
defense  by  a  vendee  in  suit  for  goods  purchased.  Connolly  v. 
Union  Sewer  Pipe  Co.,  181  U.  S.  510  and  16  L.  Ed.  670. 

See  also  In  re  "Wise  wall,  71  Fed.  Eep.  S02,  where  it  was  held 
that  one  who  requests  and  accepts  services  of  a  tug  for  towage 
purposes,  cannot  escape  paying  the  reasonable  value  of  the 
services  rendered  on  ground  that  the  tug  owners  are  members 
of  an  association  which  is  illegal  under  the  Act. 

It  is  no  objection  to  the  enforcement  of  a  contract,  in  the 
consideration  of  which  nothing  illegal  inheres,  that  it  may 
incidentally  aid  one  of  the  parties  in  exacting  and  violating 
the  Anti-Trust  statute.  This  was  held  in  Ingraham  v.  Nat'l 
Salt  Co.,  130  Fed.  Eep.  676,  Circuit  Ct.  of  App.,  2nd  Cir.  re- 
versing, 120  Fed.  Eep.  40,  where  the  action  was  to  recover  the 
amount  of  certificates  created  by  defendant,  in  payment  of 
;k  of  another  company,  the  certificates  in   payment  of  the 


§§  346,  347.]  THE    ANTI-TRUST    ACT    OF    1800.  371 

stock  purchased  being  held  to  have  been  lawfully  issued  in 
exercise  of  the  defendant's  implied  power  to  incur  indebted- 
ness. 

§34G.  The  act  as  a  defense  in  patent  litigation. —  It  was 

held  in  General  Electric  Co.  v.  Wise,  119  Fed.  Rep.  922,  that 
the  fact  that  a  complainant  in  a  patent  suit  is  a  member  of 
a  combination  in  violation  of  the  Anti-Trust  Act,  does  not  o-ive 
third  persons  the  right  to  infringe  a  patent  of  which  the  de- 
fendant is  the  owner,  nor  does  it  preclude  the  complainant 
from  maintaining  a  suit  to  enjoin  such  infringement.  The 
court  in  this  case  refused  to  follow  the  case  of  National  Har- 
row Co.  v.  Quick,  67  Fed.  Eep.  130,  decided  in  1895,  which 
held  that  the  company  authorized  to  receive  assignments  of 
letters  patent  and  grant  back  to  the  assignors  licenses,  and  to 
regulate  and  control  prices,  was  against  public  policy  and  void. 
This  ruling  however  was  not  made  under  the  Anti-Trust 
Act. 

In  Bement  v.  National  Harrow  Co.,  1S6  IT.  S.  70,  46  L.  Ed. 
1058,  in  a  suit  brought  by  the  same  complainant,  the  Court 
said  that  the  object  of  the  patent  laws  was  monopoly,  and  that 
the  rule  was,  with  few  exceptions,  that  any  conditions,  which 
were  not  in  their  nature  illegal  with  regard  to  the  kind  of 
property,  imposed  by  the  patentee  and  agreed  to  by  the  licen- 
see for  the  rig-ht  to  manufacture  or  use  or  sell  the  article,  will 
be  upheld  by  the  courts,  and  the  fact  that  the  conditions 
in  the  contract  keep  up  a  monopoly  does  not  render  them 
illegal. 

See  also  Edison  Electric  Light  Co.  v.  Sawyer  Mfg.  Elec. 
Co.  (2nd  Circ),  3  C.  C.  A.  695,  53  Fed.  Eep.  592;  Bonsack  Mach- 
ine Co.  et  al  v.  Smith  et  al,  (C.  C,  W.  D.  of  K  C),  70  Fed. 
Eep.  383;  National  Folding  Box  Co.  v.  Eobertson  et  al  (C.  C, 
E.  D.  of  Conn.),  99  Fed.  Eep.  985. 

§347.  Self  incriminating  testimony.— It  was  held  in  Foote 
v.  Buchanan,  113  Fed.  Eep.  156,  that  the  act  of  Congress  of 
February  11,  1893  does  not  apply  to  prosecutions  under  the 
Anti-Trust  Act,  and  that  the  Fifth  Amendment  applies  thereto 
so  that  self  incriminating  testimony  could  not  be  enforced. 
The  Court  held  in  this  case  that  where  the  witness  claims  that 
the  answer  would  incriminate  him,  it  is  not  for  the  witness 


372  THE    ANTI-TRUST    ACT    OF    1690.  [SECTION    (. 

but  for  the  judge  to  deeide  whether  under  the  circumstances 
such  might  be  the  effect  This  decision  however  was  prior 
to  passso-e  of  the  act  of  Feb.  25,  1903,  which  provides  both  as 
to  this  Act  and  the  Interstate  Commerce  Act,  that  no  "person 
shall  be  subjected  to  any  penalty  or  forfeiture  for  or  on  ac- 
count of  any  transaction,  matter  or  thing,  concerning  which 
he  may  testify  or  produce  evidence,  documentary  or  otherwise, 
in  any  suit,  proceeding  or  prosecution  under  said  Acts;  and 
provided  further  that  no  person  so  testifying  shall  be  exempt 
from  prosecution  or  punishment  for  perjury  committed  in  so 
testifying." 


§  348.]        the  anti-trust  act  of  1s90.  373 

Section  8. 
§  348.     Section  8  of  the  Act. 

§348.  « Person  "or  "persons"  defined.— Sec.  8.  That 
the  word  "  person,"  or  "  persons,"  wherever  used  in  this  act 
shall  be  deemed  to  include  corporations  and  associations  exist- 
ing under  or  authorized  by  the  laws  of  either  the  United  States, 
the  laws  of  any  of  the  Territories,  the  laws  of  any  State,  or  the 
laws  of  any  foreign  country. 

This  statutory  inclusion  of  the  corporations  and  associations 
in  the  term  "person"  is  not  contained  in  the  Interstate  Com- 
merce Act.  The  general  rule  however  is  well  established  that 
the  term  "person"  as  well  as  the  term  "citizen"  is  to  be  con- 
strued as  including  corporations  unless  there  be  something  be- 
3Tond  the  mere  use  of  the  word  to  indicate  the  intent  on  the 
part  of  Congress  to  include  them.  United  States  v.  Amedy,  11 
Wheat.  329,  6  L.  Ed.  502;  Kamsey  v.  Tacoma  Land  Co.,  196  U. 
S.  360.     See  also  supra,  §  264. 


THE  EXPEDITION  ACT. 

Page 

§  349.     Expedition  of  cases  3 ' 4 

350.     Judicial  application  of  Act 3?5 

An  Act  to  expedite  the  hearing  and  determination  of  suits  in  equity  pend- 
ing or  hereafter  brought  under  the  Act  of  July  second,  eighteen  hund- 
red and  ninety,  entitled  "An  Act  to  protect  trade  and  commerce  against 
unlawful  restraints  and  monopolies,"  ''An  Act  to  regulate  commerce." 
approved  February  fourth,  eighteen  hundred  and  eighty-seven,  or  any 
other  Acts  having  a  like  purpose  that  may  be  hereafter  enacted. 

§  349.  Expedition  of  cases. —  Be  it  enacted  oy  the  Senate 
and  House  of  Representatives  of  th    United  States  of  America 
in    Congress  assembled'.     Sec.    1.  That  in   any  suit   in  equity 
pending   or    hereafter    brought   in   any  circuit   court  of    the 
United  States  under  the  act  entitled  "An  Act  to  protect  trade 
and  commerce  against  unlawful  restraints  and   monopolies," 
approved  July  second,  eighteen    hundred  and    ninety,    "An 
Act  to  regulate  commerce,"  approved  February  fourth,  eight- 
een  hundred   and    eighty-seven,   or  any  other  acts    having  a 
like    purpose   that    hereafter  may   be   enacted,   wherein   the 
United  States  is  complainant,  the  Attorney-General  may  file 
with  the  clerk  of  such  court  a  certificate  that,  in  his  opinion, 
the  case  is  of  general    public  importance,  a  copy  of  which 
shall  be  immediately  furnished  by  such   clerk  to  each  of  the 
circuit  judges  of  the  circuit  in  which   the  case  is  pending. 
Thereupon °such  case  shall  be  given  precedence  over  others 
and  in  every  way  expedited,  and  be  assigned  for  hearing  at 
the  earliest  practicable  day,  before  not  less  than  three  of  the 
circuit  judges  of  said  circuit,  if  there  be  three  or  more;  and 
if  there  be  not  more  than  two  circuit  judges,  then  before  them 
and  such  district  judge  as  they  may  select.     In  the  event  the 
judges  sitting  in  such  case  shall  be  divided  in  opinion,  the  case 
shall  be  certified  to  the  Supreme  Court  for  review  in  like  man- 
ner as  if  taken  there  by  appeal  as  hereinafter  provided. 

Sec.  2.  That  in  every  suit  in  equity  pending  or  hereafter 
brought  in  any  circuit" court  of  the  United  States  under  any 
of  said,  acts,  wherein  the  United  States  is  complainant,  in- 
cluding cases  submitted  but  not  yet  decided,  an  appeal  from 
the  final  decree  of  the  circuit  court  will  lie  only  to  the 
Supreme  Court  and  must  be  taken  within  sixty  days  from  the 
entry  thereof:  Provided,  That  in  any  case  where  an  appeal 
may  have  been  taken  from  the  final  decree  of  a  circuit  court 
to  "the  circuit  court  of  appeals  before  this  act  takes  effect, 
the  case  shall  proceed  to  a  final  decree  therein,  and  an  appeal 
may  be  taken  from  such  decree  to  the  Supreme  Court  in  the 
manner  now  provided  by  law. 


§  350.]  THE    EXPEDITION    ACT.  375 

This  Act,  known  as  the  "Expedition  Act,"  was  approved 
February  11,  1903,  prior  to  the  act  amendatory  of  the  Inter- 
state Commerce  Act,  which  was  approved  February  19,  1903, 
supra,  §  310,  and  is  therefore  referred  to  in  the  third  section 
of  that  act,  where  it  is  provided  that  the  provisions  of 
this  Act  shall  be  applicable  to  any  suit  prosecuted  under  the 
direction  of  the  Attorney  General  in  the  name  of  the  Interstate 
I  Commerce  Commission. 

§  350.  Judicial  application  of  Act. —  The  summary  proce- 
dure provided  by  this  Act  was  illustrated  and  enforced  in  the 
Northern  Securities  case,  which  was  argued  in  the  Circuit 
Court  at  St.  Louis  before  the  four  judges  of  the  court  in 
April,  1903,  decided  in  May,  1903,  appealed  to  the  Supreme 
Court,  advanced  on  the  docket  and  finally  decided  on  the 
fourth  day  of  April,  1904. 

In  Interstate  Commission  v.  Baird,  191  U.  S.  25,  decided 
April  4,  1904,  which  was  appealed  directly  to  the  Supreme' 
Court  from  the  Circuit  Court  in  a  proceeding  instituted  by  Mr. 
Hearst  before  the  Commission,  the  Supreme  Court  held  that 
the  appeal  was  properly  made  to  the  Supreme  Court  from  the 
Circuit  Court,  and  the  right  of  direct  appeal  was  also  ap- 
plicable to  proceedings  to  enforce  the  production  of  books 
and  papers  or  the  giving  of  testimone}7  before  the  Commission. 
The  Court  said  it  was  the  purpose  of  this  Act  of  1903  to  elimi- 
nate the  necessity  of  any  appeal  in  the  Circuit  Court  of  Ap- 
peals and  permit  the  litigation  to  be  shortened  by  direct  ap- 
peal to  the  Supreme  Court. 

In  Missouri  Pacific  Railroad  Co.  v.  United  States,  1S9  U. 
S.  274,  47  L.  Ed.  811,  decided  March  9, 1903,  the  Supreme  Court 
while  holding  that  the  Circuit  Court  had  erred  in  refusing  to 
sustain  a  demurrer  of  a  railroad  company  to  a  bill  filed  by  the 
district  attorney  of  the  United  States  under  the  direction  of 
the  Attorney-General,  at  the  instance  of  the  Interstate  Com- 
merce Commission,  also  said  that  the  Act  of  February  1903 
expressly  conferred  this  power  to  invoke  the  remedy  of  in- 
junction, which  had  not  heretofore  existed,  and  as  that  Act 
specifically  provided  that  the  new  remedies  which  it  created 
should  be  applicable  to  all  cases  then  pending,  the  court  there- 
fore decided  that  the  case  would  not  be  finally  be  disposed  of, 
but  would  be  remanded  for  further  proceedings  in  accordance 
with  the  provisions  of  this  Act  of  Feb.  19,  1903. 


THE  DEPARTMENT  OF  COMMERCE  AND  LABOR. 

Page 

£  351.     The  Department  of  Commerce  and  Labor 376 

353.     Section  six  of  the  Act  37G 

353.     The  remaining  sections  of  the  Act 378 

j>  351.  The  Department   of  Commerce  and  Labor. —  The 

Department  of  Labor  was  established  by  the  Act  of  June  13, 
1  vvs.  That  Department  was  placed  under  the  jurisdiction  and 
made  part  of  the  Department  of  Commerce  and  Labor  estab- 
lished by  Act  of  February  14, 1903,  Sup.  to  Com  p.  Stat.,  page  41. 
Section  1  provides  for  the  establishment  of  the  executive 
department  and  the  Secretary  of  Commerce  and  Labor;  sec- 
tion 2  for  an  Assistant  Secretary  of  Commerce  and  Labor,  and 
other  clerks;  section  3  declares  in  general  terms  the  province 
and  duties  of  the  department  to  foster,  promote  and  develop 
the  foreign  and  domestic  commerce,  the  manufacture,  mining, 
shipping  and  fishery  industries,  the  labor  interests  and  the 
transportation  facilities  of  the  United  States,  and  certain  ap- 
propriations are  made  applicable  therefor;  section  4  provides 
for  the  transfer  of  certain  existing  offices,  etc.,  from  the  Treas- 
ury and  Interior  Departments  to  this  Department,  including 
the  Lighthouse  Establishment,  Steamboat  Inspection  Service, 
Bureau  of  Navigation,  the  Bureau  of  Immigration,  the  Bureau 
of  Statistics  from  the  Treasury,  and  the  Census  Office  from 
the  Department  of  the  Interior;  section  5  establishes  a  Bureau 
of  Manufactures  making  it  the  province  and  duty  of  the  Bu- 
reau to  foster  and  develop  the  various  manufacturing  interests 
of  the  United  States  and  markets  for  the  same  at  home  and 
abroad,  domestic  and  foreign,  by  gathering,  compiling  and 
supplying  all  useful  information  concerning  such  markets. 
(  onsular  reports  are  provided  for.  Section  6  of  the  Act  pro- 
viding for  a  Bureau  of  Corporations  is  set  out  in  full: 

§352.  Bureau  of  Corporations  —  Commissioner,  Deputy, 
etc. —  Sec.  G.  That  there  shall  be  in  the  Department  of  Com- 
merce and  Labor  a  bureau  to  be  called  the  Bureau  of  Corpo- 
rations, and  a  Commissioner  of  Corporations,  who  shall  be  the 


§  352.]  DEPARTMENT    OF    COMMERCE    AND    LABOR.  377 

head  of  said  bureau,  to  be  appointed  by  the  President,  who 
shall  receive  a  salary  of  live  thousand  dollars  per  annum. 
There  shall  also  be  in  said  bureau  a  deputy  commissioner,  who 
shall  receive  a  salary  of  three  thousand  five  hundred  dollars 
per  annum,  aud  who  shall,  in  the  absence  of  the  Commissioner, 
act  as  and  perform  the  duties  of  the  Commissioner  of  Corpo- 
rations, and  who  shall  perform  such  other  duties  as  may  be 
assigned  to  him  by  the  Secretary  of  Commerce  and  Labor  or 
by  the  said  Commissioner.  There  shall  also  be  in  the  said 
bureau  a  chief  clerk  and  such  special  agents,  clerks,  and  other 
employees  as  may  be  authorized  by  law. 

The  said  Commissioner  shall  have  power  and  authority  to 
make,  under  the  direction  and  control  of  the  Secretary  of 
Commerce  and  Labor,  diligent  investigation  into  the  organiza- 
tion, conduct,  and  management  of  the  business  of  any  corpo- 
ration, joint  stock  company,  or  corporate  combination  engaged 
in  the  commerce  among  the  several  States  and  with  foreign 
nations,  excepting  common  carriers  subject  to  "An  Act  to  reg- 
ulate commerce,"  approved  February  fourth,  eighteen  hundred 
and  eighty-seven,  and  to  gather  such  information  and  data  as 
will  enable  the  President  of  the  United  States  to  make  recom- 
mendations to  Congress  for  legislation  for  the  regulation  of 
such  commerce,  and  to  report  such  data  to  the  President  from 
time  to  time  as  he  shall  require;  and  the  information  so  ob- 
tained or  as  much  thereof  as  the  President  may  direct,  shall  be 
made  public. 

In  order  to  accomplish  the  purposes  declared  in  the  forego- 
ing part  of  this  section,  the  said  Commissioner  shall  have  and 
exercise  the  same  power  and  authority  in  respect  to  corpora- 
tions, joint  stock  companies,  and  combinations  subject  to  the 
provisions  hereof,  as  is  conferred  on  the  Interstate  Commerce 
Commission  in  said  "Act  to  regulate  commerce"  and  the 
amendments  thereto,  in  respect  to  common  carriers  so  far  as 
the  same  may  be  applicable,  including  the  right  to  subpoena 
and  compel  the  attendance  and  testimony  of  witnesses  and  the 
production  of  documentary  evidence  and  to  administer  oaths. 
All  the  requirements,  obligations,  liabilities,  and  immunities 
imposed  or  conferred  by  said  "  Act  to  regulate  commerce  "  and 
by  "An  Act  in  relation  to  testimony  before  the  Interstate 
Commerce  Commission,"  and  so  forth,  approved  February 
eleventh,  eighteen  hundred  and  ninety-three,  supplemental  to 
said  "Act  to  regulate  commerce,"  shall  also  apply  to  all  per- 
sons who  may  be  subpoenaed  to  testify  as  witnesses  or  to  pro- 
duce documentary  evidence  in  pursuance  of  the  authority  con- 
ferred by  this  section. 

It  shall  also  be  the  province  and  duty  of  said  Bureau,  under 
the  direction  of  the  Secretary  of  Commerce  and  Labor,  to 
gather,  compile,  publish,  and  supply  useful  information  con- 
cerning corporations  doing  business  within  the  limits  of  the 


;;7^  department  of  commerce  and  laeok.  [Sec.  G. 

United  States  and  shall  engage  in  interstate  commerce  or  in 
commerce  between  the  United  States  and  any  foreign  country, 
including  corporations  engaged  in  insurance,  and  to  attend  to 
such  other  duties  as  may  be  hereafter  provided  by  law. 

§  353.  The  remaining  sections  of  the  Act.  Section  Ideals 
with  the  control  of  the  fur-seal  and  other  Alaskan  fisheries, 
the  immigration  of  aliens:  section  8  with  the  annual  reports  to 
Congress  and  special  investigations  and  reports;  section  9  with 
the  custody  of  the  department  buildings,  property,  records, 
etc.  Section  1"  with  the  transfer  of  duties  and  powers  of  heads 
of  executive  departments,  and  their  duties,  powers,  etc.,  for  the 
Secretary  of  the  Treasury,  seamen,  shipping,  etc.  Section  11 
provides  for  the  co-operation  of  the  State  Department  in  the 
matter  of  consular  reports.  Section  12  provides  for  the  trans- 
fer to  this  department  of  offices,  bureaus,  etc.,  engaged  in  scien- 
tific work  to  this  department.  The  remaining  sections  of  the 
Act  dealt  with  the  time  of  taking  effect  of  the  transfers  pro- 
vided for  and  for  the  administrative  details  in  the  matter  of 
appropriations,  transfer  of  officers,  clerks,  etc.,  and  the  occupa- 
tion of  buildings.     See  supra,  §  71. 


THE  SAFETY  ACT  OF  1893,  AMENDED  1896. 
Section  1. 

Page 
§  354.     Section  1  of  the  Act 379 

355.  Railroads  subject  to  the  Act 379 

356.  The  common  law  duty  of  the  carrier  in  relation  to  safety  ap- 

pliances   380 

357.  Petition  and  procedure  under  the  Act 381 

358.  Federal  question  in  suits  under  the  Act 381 

An  Act  to  promote  the  safety  of  employees  and  travelers  upon  railroads  by 
compelling  common  carriers  engaged  in  interstate  commerce  to  equip 
their  cars  with  automatic  couplers  and  continuous  brakes  and  their  loco- 
motives with  driving-wheel  brakes,  and  for  other  purposes. 

§  354.  Driving-wheel  and  train  brakes. —  Be  it  enacted  by 
the  Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled:  Sec.  1.  That  from  and  after 
the  first  day  of  January,  eighteen  hundred  and  ninety-eight, 
it  shall  be  unlawful  for  any  common  carrier  engaged  in  inter- 
state commerce  by  railroad  to  use  on  its  line  any  locomotive 
engine  in  moving  interstate  traffic  not  equipped  with  a  power 
driving-wheel  brake  and  appliances  for  operating  the  train- 
brake  system,  or  to  run  any  train  in  such  traffic  after  said  date 
that  has  not  a  sufficient  number  of  cars  in  it  so  equipped  with 
power  or  train  brakes  that  the  engineer  on  the  locomotive 
drawing  such  train  can  control  its  speed  without  requiring 
brakemen  to  use  the  common  hand  brake  for  that  purpose. 

§  355.  Railroads  subject  to  the  Act. — This  Act,  as  also 
the  Accident  law,  is  made  applicable  to  any  common  carrier 
engaged  in  interstate  commerce  by  railroad,  while  the  Inter- 
state Commerce  Act  applies  only  to  the  interstate  traffic  of 
railroad  carriers,  except  in  the  requirement  of  annual  reports 
under  section  20  of  that  Act.  In  United  States  v.  Geddes,  131 
Fed.  Iiep.  452,  C.  C.  A.,  sixth  Circuit,  which  was  a  suit  on  be- 
half of  the  United  States  for  the  recovery  of  penalties  under 
this  Act,  the  Court  held  that  a  narrow  gauge  railroad  wholly 
in  Ohio  which  connected  at  one  of  its  termini  with  an  inter- 
state road  but  neither  shipped  nor  received  any  traffic  under 
a   through    bill   of   lading,  or  anv    other   arrangement,    and 


3S0  THE  SAFETY  ACT  OF  1S93,  AMENDED  1S96.      [SECTION  1. 

charged  local  freight  tariffs  on  its  own  line,  assuming  pay- 
ment of  the  Baltimore  &  Ohio  advance  charges  with  weekly 
settlements,  was  not  engaged  in  interstate  commerce  within 
the  meaning  of  this  Act,  and  was  therefore  not  subject  to  pen- 
alties for  non-compliance.  The  Court  said  that  under  the  rul- 
ings of  the  Supreme  Court,  express  and  sleeping  car  and  rail- 
road companies  were  limited  to  the  nature  of  their  business, 
making  it  local  or  interstate  or  both  as  they  pleased,  and  that 
assuming  the  payment  of  the  charges  of  the  delivering  road 
did  not  constitute  a  continuous  carriage  necessary  to  make  the 
business  of  interstate  commerce. 

§  356.  The  common  law  duty  of  the  carrier  in  relation  to 
safety  appliances.— It  was  held  by  the  Supreme  Court  of 
North  Carolina  that  the  action  of  the  Interstate  Commerce 
( lommission  in  extending  the  date  at  which  the  Act  should  go 
into  force  could  not  set  aside  the  principle  of  law  that  failure 
to  provide  the  appliances  was  negligence  per  se,  and  that  such 
postponement  could  not  have  any  other  effect  than  to  post- 
pone the  date  at  which  the  use  would  impose  the  penalty  for 
failure  to  do  so.  In  other  words,  that  the  Court  would  take 
notice  of  the  act  as  establishing  by  legislative  recognition  a 
measure  of  legal  duty  of  the  railroad  company  in  providing 
safe  appliances,  that  is,  modern  self-coupling  devices,  for  its 
employees.  Troxler  v.  Southern  Ey.  Co.,  122  K  C.  902,  44 
I..  It.  A.  313.  See  also  Greenlee  v.  Southern  Eailway  Co., 
122  X.  C.  9S2,  41  L.  E.  A.  99. 

In  Schleman  v.  Eailroad  Co.,  207  Pa.  St.  19S,  the  Court 
intimated  that  it  was  doubtful  whether  the  Act  had  any 
applicability  to  actions  for  negligence  in  Pennsylvania,  butdid 
not  decide  this  point  as  the  plaintiff  was  non-suited  for  con- 
tributory negligence. 

In  New  England  Eailroad  Co.  v.  Conroy,  175  U.  S.  323,  44 
L  Ed.  181,  ( 1899),  a  case  not  arising  under  the  Act,  but  involv- 
ing the  question  of  the  responsibility  of  the  engineer,  the 
Court  said  that  as  railroads  are  now  operated,  the  engineer  is  a 
much  more  important  functionary  in  the  actual  movements  of 
the  train  than  the  conductor,  and  particularly  has  this  become 
the  case  since  the  introduction  of  the  air  brake  train  system, 
and  the  Court  referred  to  the  first  section  of  this  Act  of  March 
2,  1893,  providing  for  air  brakes  under  the  control  of  the  en- 


§§  357,  35S.]   THE  SAFETY  ACT  OF  1893,  AMENDED  1896.     381 

gineer,  saying:  "  We  do  not  refer  to  this  statute  as  directly- 
applicable  to  the  case  in  hand,  but  as  a  legislative  recognition 
of  the  dominant  position  of  the  engineer."  See  also  Northern 
Pacific  Railroad  Co.  v.  Tynan,  50  C.  C.  A.  192,  119  Fed.  Rep. 
288,  where  the  Court  says  that  prior  to  the  passage  of  this  Act 
there  had  been  numerous  decisions  rendered  by  the  courts  of 
this  country  where  it  was  held  that  the  railroad  companies 
were  guilty  of  negligence  in  using  the  Miller  coupler  in  con- 
nection with  the  ordinary  link  draw  bars.  See  also  Texas  A; 
Pacific  R  Co.  v.  Archibald.  170  U.  S.  665,  42  L.  Ed.  1188. 

§  357.  Petition  and  procedure  under  the  Act. — Held  in 
Yoelker  v.  Railroad  Co.,  116  Fed.  Rep.  867,  and  affirmed  on 
this  point  by  the  Court  of  Appeals,  that  it  is  not  necessary  for 
the  petition  for  personal  injuries  suffered  under  violation  of 
the  Act  to  refer  to  the  Act,  although  the  burden  is  on  the  plain- 
tiff to  show  that  the  car  on  which  he  was  injured  was  engaged 
in  interstate  commerce,  Winkler  v.  Pennsylvania  R.  Co. 
(Dela.),  53  Atl.  Rep.  90;  and  it  is  a  question  for  the  jury 
whether  railroad  companies  comply  with  the  act.  Crawford  v. 
Railroad  Co.,  10  Am.  Negligence  Reps.  106. 

§  358.  Federal  question  in  suits  under  the  Act. — The  in- 
struction by  a  court  to  a  jury  that  railroads  are  required  to 
keep  their  appliances  in  good  and  suitable  order,  raised  no 
question  under  the  Act  so  as  to  make  a  claim  of  a  federal 
right  under  section  709  R.  S.,  which  can  be  the  basis  of  a  writ 
of  error  from  the  Supreme  Court  to  the  highest  court  of  the 
state.  Southern  Ry.  Co.  v.  Carson,  191  U.  S.  130,  48  L.  Ed. 
907.  It  was  objected  in  this  case  that  the  instructions  in  the 
State  Court  assumed  that  if  the  automatic  coupling  was  out  of 
order  the  company  failed  to  comply  with  the  act  of  Congress, 
and  the  Supreme  Court  of  the  State  held  that  there  was  no 
error  in  this,  as  Congress  must  have  intended  that  the  couplers 
should  have  been  kept  in  proper  repair  for  use,  and  moreover 
as  such  was  the  law  of  the  State,  even  if  the  act  of  Congress 
had  not  specifically  imposed  this  duty.  -The  Court  said  that 
in  this  ruling  no  right  was  specifically  set  up  or  claimed  under 
the  act  of  Congress,  and  the  writ  of  error  was  dismissed. 


3S2  THE  SAFETY  ACT  OF  1S93,  AMENDED  1896.      [SECTION  2. 


Section  2. 

Pagre. 
§  359.     Section  2  of  the  Act 382 

360.  Coupler  equipment  under  section  2 3853 

361.  Automatic  couplers  of  different  makes 383 

363.     The  meaning  of  "car  **  in  section  2 373 

363.     When  cars  are  in  interstate  commerce 384 

§  -350.  Automatic  couplers.— Sec.  2.  That  on  and  after 
the  first  day  of  January,  eighteen  hundred  and  ninety-eight,  it 
shall  be  unlawful  for  any  such  common  carrier  to  haul  or  per- 
mit to  be  hauled  or  used  on  its  line  any  car  used  in  moving  in- 
terstate traffic  not  equipped  with  couplers  coupling  automati- 
cally by  impact,  and  which  can  be  uncoupled  without  the  ne- 
cessity of  men  going  between  the  ends  of  cars. 

§  360.  Coupler  equipment  under  section  2. — The  require- 
ment of  automatic  couplers  in  section  2  has  been  construed  by 
the  Circuit  Court  of  Appeals  for  the  eighth  Circuit  in  a 
recent  case,  Chicago,  Milwaukee  &  St.  Paul  E.  Co.  v.  Yoelker, 
129  Fed.  Rep.  522,  reversing  116  Fed.  Rep.  807,  decided  March 
1904.  The  Court  said  that  the  Act  of  Congress  forbade  the  use 
of  a  coupler  which  required  the  operator  to  go  between  the 
ends  of  the  cars  to  prepare  the  coupler  for  the  impact.  The 
preparation  of  the  coupler  for  the  impact  in  not  distinct  from 
the  act  of  coupling.  Both  are  connected  with  the  indispensa- 
ble parts  of  the  larger  act,  which  is  regulated  by  the  statute 
and  the  performance  of  which  is  intended  to  be  released  from 
unnecessary  risk  and  danger.  The  Court  ruled  that  when  an 
automatic  car  coupler  had  been  permitted  to  become  worn  and 
defective  so  the  lever  would  not  lift  the  pin  from  the  socket, 
and  the  knuckle  could  not  be  drawn  open  by  leaning  toward 
the  coupler  and  using  one  hand,  but  required  the  presence  of 
the  operator's  entire  body  between  the  ends  of  the  cars  and 
the  draw  bars  and  the  use  of  both  his  hands,  it  failed  to  meet 
the  requirements  of  the  Act  and  constituted  actionable  negii- 
gence. 

'  It  was  held  in  Briggs  v.  C,  X.  &  W.  R.  Co.,  125  Fed.  Eep. 
715,  that  when  a  railroad  company  in  order  to  comply  with  sec- 
tion -1  of  the'  Act  removed  the  long  pilot  from  in  front  of  the  en- 
gine and  substituted  a  shorter  one  in  order  to  put  the  automatic 
coupler  in  front  of  the  engine,  an  accident  which  could  have 


$§361,362.]       THE    SAFETY    ACT    OF    1S93,  AMENDED    1896. 


383 


been  prevented  by  a  long  pilot  does  not  make  the  company 
liable. 

§  361.  Automatic    couplers    of    different    makes.— The 

amendment  of  1903  provides  that  the  Act  shall  apply  in  all 
cases  whether  or  not  the  couplers  brought  together  are  the 
same  kind,  make  or  title,  and  the  provisions  and  requirements 
relating  to  train  brakes,  automatic  couplers,  grab  irons  and  the 
height  of  draw  bars  apply  to  all  trains,  locomotive  tenders  and 
cars,  and  similar  vehicles  used  on  any  railroad  in  interstate 
commerce  and  saving  those  excepted  by  the  Act. 

Prior  to  this  amendment  of  1903  it  had  been  held  by  the 
Circuit  Court  of  Appeals  of  the  eighth  Circuit,  in  Johnson  v. 
Southern  Pacific  By.  Co.,  51  C.  C.  A.  SOS,  117  Fed.  Rep.  462, 
that  the  equipment  with  automatic  couplers  which  would 
couple  automatically  with  those  of  the  same  make,  was  a  com- 
pliance with  the  statute,  and  it  did  not  require  cars  used  in 
interstate  commerce  to  be  equipped  with  couplers  which  would 
couple  automatically  with  cars  equipped  with  automatic  coup- 
lers of  other  makes.  This  ruling  was  applied  to  a  case  where 
a  freight  engine  was  equipped  with  a  Janney  coupler  and  a 
car  which  was  provided  with  Miller  hook  or  Miller  coupler 
which  would  not  couple  automatically  with  the  Janney  coup- 
ler. The  plaintiff,  a  brakeman  on  defendant's  road,  undertook 
to  make  a  coupling  by  means  of  a  link  and  pin  and  was  in- 
jured in  so  doing.  The  Circuit  Court  instructed  the  jury  to 
return  a  verdict  for  the  defendant,  but  this  judgment  was  re- 
versed by  the  Supreme  Court,  December  19,  1904,  which  held 
that  the  couplers  required  must  be  of  such  a  nature  and  char- 
acter, that  they  must  couple  automatically  and  save  the  em- 
ployees from  going  between  the  cars,  and  that  the  use  of 
automatic  couplers  which  did  not  couple  automatically  on 
the  same  train,  whether  of  the  same  make  or  not,  violated 
the  Act. 

As  stated  above  however  this  requirement  is  now  enforced 
by  the  amended  statute  of  1903. 

§  362.  The  meaning  of  "car"  in  section  2.— In  the  same 
case  the  term  "car"  as  used  in  section  2,  which  was  held  by  a 
majority  of  the  Court  of  Appeals,  Thayer,  J.,  dissenting,  not 
to  include  locomotives,  and  that  there  was  no  language  in  the 
act  which  would  make  it  unlawful  to  use  in  interstate  com- 


3S4  THE  SAFETY  ACT  OF  1S93,  AMENDED  1896.      [SECTION  2. 

merce  locomotive  engines  which  were  not  equipped  with  auto- 
matic couplers.  This  ruling  was  reversed  by  the  Supreme 
Court,  which  held  that  the  law  must  be  construed  with  refer- 
ence to  the  danger  to  employees  which  it  sought  to  remedy, 
and  that  for  the  purposes  of  safety  appliances,  locomotives 
were  cars  within  the  meaning  of  the  Act  and  are  required  to 
be  equipped  with  automatic  couplers,  and  that  it  was  even 
more  necessary  that  locomotives  should  be  so  equipped  than 
it  was  that  freight,  dining  and  passenger  cars  should  be,  since 
locomotives  had  occasion  to  make  couplings  more  frequently. 
The  word  car  was  therefore  used  in  a  generic  sense  as  includ- 
ing both  the  locomotive  and  its  tender. 

;j  363.  When  cars  are  in  interstate  commerce. — Another 
important  ruling  was  made  in  the  same  case.  The  injury  in 
this  case  was  caused  in  coupling  a  freight  engine  with  a  din- 
ing car  which  had  been  detached  from  a  through  train,  turned 
on  the  turn-table  and  was  to  be  drawn  by  a  freight  engine 
to  the  turn-table,  turned,  and  then  moved  to  a  side  track  to 
wait  another  through  train  moving  in  the  opposite  direction. 
As  the  car  was  standing  empty  on  the  side  track  when  the 
plaintiff  was  injured,  the  majority  of  the  Court  held  that  it 
was  not  engaged  in  interstate  commerce,  and  therefore  at  the 
time  of  the  accident  the  locomotive  and  dining  car  were  not 
being  used  in  moving  interstate  traffic  within  the  meaning'  of 
the  Act.  The  Supreme  Court  in  the  case  cited,  and  in  the 
same  opinion,  reversed  this  decision,  and  held  that  the  dining 
car,  though  empty  and  on  a  side  track,  was  engaged  in  inter- 
state commerce  within  the  meaning  of  the  Act. 


§  364.]         the  safety  act  of  1s93,  amended  1896.  385 

Section  3. 
§  364.     Section  3  of  the  Act. 

§  364.  When  carriers  may  refuse  to  receive  cars. —  Sec.  3. 
That  when  any  person,  firm,  company,  or  corporation  engaged 
in  interstate  commerce  by  railroad  shall  have  equipped  a  suf- 
ficient number  of  its  cars  so  as  to  comply  with  the  provisions 
of  section  one  of  this  act,  it  may  lawfully  refuse  to  receive 
from  connecting  lines  of  road  or  shippers  any  cars  not  equip- 
ped sufficiently,  in  accordance  with  the  first  section  of  this 
act,  with  such  power  or  train  brakes  as  will  work  and  readily 
interchange  with  the  brakes  in  use  on  its  own  cars,  as  required 
by  this  act. 


386  THE    SAFETY   ACT   OF    1893,  AMENDED    1896.       [SECTION  4. 


Section  4. 

§  365.     Section  4  of  the  Act 

366.     The  use  of  defective  cars  forbidden. 

§  3G5.  Grab  irons  and  handholds. —  Sec.  4.  That  from  and 
after  the  first  day  of  July,  eighteen  hundred  and  ninety-five, 
until  otherwise  ordered  by  the  Interstate  Commerce  Commis- 
sion, it  shall  be  unlawful  for  any  railroad  company  to  use  any 
car  in  interstate  commerce  that  is  not  provided  with  secure 
grab  irons  or  handholds  in  the  ends  and  sides  of  each  car  for 
greater  security  to  men  in  coupling  and  uncoupling  cars. 

§  3()f>.  The  use  of  defective  cars  forbidden. —  The  prohibi- 
tion of  the  statute  is  against  the  use,  and  not  against  the  own- 
ership of  a  car,  defective  in  its  required  equipment.  There  is 
no  right  of  recovery  by  a  terminal  railroad,  which  has  been 
mulcted  in  damages  in  a  suit  by  an  employee  for  injuries  sus- 
tained in  handling  a  car,  wanting  in  equipment,  from  the  car- 
rier company  owning  the  car;  as  it  was  its  duty  to  refuse  to 
receive  the  defective  car;  and  therefore  it  was  so  far  a  wrong 
doer  that  it  could  not  recover  over  from  the  owning  company. 
Union  Stockyards  of  Omaha  v.  C,  B.  &  Q.  R.  K.  Co.  —  U.  S. 
Jan.  1905. 


§  367.]  THE    SAFETY    ACT    OF    1S93,  AMENDED    1S96.  3S7 

Section  5. 
§  367.     Section  5  of  the  Act. 

§307.  Standard  height  of  drawbars  for  freight  cars. — 

Sec.  5.  That  within  ninety  days  from  the  passage  of  this  act 
the  American  Railway  Association  is  authorized  hereby  to 
designate  to  the  Interstate  Commerce  Commission  the  stand- 
ard height  of  drawbars  for  freight  cars,  measured  perpendic- 
ular from  the  level  of  the  tops  of  the  rails  to  the  centers  of 
the  drawbars,  for  each  of  the  several  gauges  of  railroads  in. 
use  in  the  United  States,  and  shall  fix  a  maximum  variation 
from  such  standard  height  to  be  allowed  between  the  draw- 
bars of  empty  and  loaded  cars.  Upon  their  determination 
being  certified  to  the  Interstate  Commerce  Commission,  said 
Commission  shall  at  once  give  notice  of  the  standard  fixed 
upon  to  all  common  carriers,  owners,  or  lessees  engaged  in 
interstate  commerce  in  the  United  States  by  such  means  as 
the  Commission  may  deem  proper.  But  should  said  associa- 
tion fail  to  determine  a  standard  as  above  provided,  it  shall  be 
the  duty  of  the  Interstate  Commerce  Commission  to  do  so, 
before  July  first,  eighteen  hundred  and  ninety-four,  and  imme- 
diately to  give  notice  thereof  as  aforesaid.  And  after  July 
first,  eighteen  hundred  and  ninety-five,  no  cars,  either  loaded 
or  unloaded,  shall  be  used  in  interstate  traffic  which  do  not 
comply  with  the  standard  above  provided  for. 

Note. — Prescribed  standard  height  of  drawbars:  Standard-gauge  roads, 
34£  inches;  narrow-gauge  roads,  26  inches;  maximum  variation  between 
loaded  and  empty  cars,  3  inches. 


368  THE    SAFETY    ACT    OF    1893.  AMENDED    1890.      [SECTION  6. 


Section  6. 

§  368.     Section  6  of  the  Act. 

369.     Enforcement  of  Act  by  prosecution. 

g  368.  Penalty  for  the  violation  of  the  provisions  of  this 

Act.— Sec.  6.  {As  amended  April  1,  1896\  That  any  such 
common  carrier  using  any  locomotive  engine,  running  any 
train,  or  hauling  or  permitting  to  be  hauled  or  used  on  its  line 
any  car  in  violation  of  any  of  the  provision's  of  this  act,  shall 
be  Liable  to  a  penalty  of  one  hundred  dollars  for  each  and  every 
such  violation,  to  be  recovered  in  a  suit  or  suits  to  be  brought 
by  the  United  States  district  attorney  in  the  District  Court  of 
the  United  States  having  jurisdiction  in  the  locality  where 
such  violation  shall  have  been  committed;  and  it  shall  be  the 
duty  of  such  district  attorney  to  bring  such  suits  upon  duly 
verified  information  being  lodged  with  him  of  such  violation 
having  occurred  ;  and  it  shall  also  be  the  duty  of  the  Interstate 
Commerce  Commission  to  lodge  with  the  proper  district  at- 
torneys information  of  any  such  violations  as  may  come  to  its 
knowledge:  Provided,  That  nothing  in  this  act  contained  shall 
apply  to  trains  composed  of  four-wheel  cars  or  to  trains  com- 
posed of  eight-wheel  standard  logging  cars  where  the  height 
of  such  car  from  top  of  rail  to  center  of  coupling  does  not  ex- 
ceed twenty-rive  inches,  or  to  locomotives  used  in  hauling  such 
trains  when  such  cars  or  locomotives  are  exclusively  used  for 
the  transportation  of  logs. 

§  360.  Enforcement  of  Act  by  prosecution.— In  U.  S.  v. 
Geddes,  (6thCirc),  131  Fed.  Eep.  452  (1904),  the  prosecution 
under  this  section  failed,  as  the  defendant  carrier  was  held  not 
to  be  included  in  the  Act,  supra,  §  353.  In  the  U.  S.  Dist.  Ct. 
S.  Dist.  of  111.  (March  1905),  several  interstate  railroad  com- 
panies were  convicted  and  fined  for  failure  to  keep  in  order 
the  automatic  couplers  with  which  their  cars  were  supplied. 


$§  370,  371.]    THE  SAFETY  ACT  OF  1893,  AMENDED  1896.  3S9 


Section  7. 
§  370.     Section  7  of  the  Act. 
371.     Discretion  of  the  Commission  in  delaying  enforcement  of  the  Act. 

§  370.  Power  to  extend  time. —  Sec.  7.  That  the  Interstate 
Commerce  Commission  may  from  time  to  time  upon  full  hear- 
ing and  for  good  cause  extend  the  period  within  which  any 
common  carrier  shall  comply  with  the  provisions  of  this  Act. 

§  371.  Discretion  of  the  Commission  in  delaying  the  en- 
forcement of  the  Act. —  This  statute,  which  as  amended  is  the 
only  enactment  for  the  safety  of  railroad  employees  in  the  fed- 
eral regulation  of  railroad  transportation,  has  been  construed 
by  the  Commission  from  time  to  time  in  connection  with  the 
discretionary  power  lodged  with  the  Commission  under  section 
1  of  the  Act  for  the  extension  of  the  period  of  time  in  which 
the  railroads  are  required  to  comply  with  the  Act.  The  Com- 
mission has  ruled  that  this  discretionary  power  was  designed 
to  afford  relief  in  cases  which  would  otherwise  inflict  special 
hardships  upon  the  public  and  the  carriers  and  should  only  be 
exercised  under  such  circumstances  and  for  such  short  lengths 
of  time  as  are  contemplated  by  the  framers  of  the  statute  and 
are  plainly  inferable  from  its  terms.  9  I.  C.  C.  R  522;  8  I.  C.  C. 
R  613,  662;  6  I.  C.  C.  E.  332. 


390  THE    SAFETY    ACT    OF    1893,  AMENDED    1S96.       [SECTION  8. 


Section  S. 

372.  Section  8  of  the  Act. 

373.  Contributory  negligence  under  the  Act. 

§  372.  Employees  not  deemed  to  assume  risk  of  employ- 
ment.—  Sec.  8.  That  any  employee  of  any  such  common  car- 
rier  who  may  be  injured  by  any  locomotive,  car,  or  train  in 
use  contrary  to  the  provision  of  this  act  shall  not  be  deemed 
thereby  to  have  assumed  the  risk  thereby  occasioned,  although 
continuing  in  the  employment  of  such  carrier  after  the  unlaw- 
ful use  of  such  locomotive,  car,  or  train  had  been  brought  to 
his  knowledge. 

§  373.  Contributory  negligence  under  the  Act. — It  is  pro- 
vided in  section  8  of  the  original  Act  that  the  continuance  in 
the  employment  of  the  carrier  by  an  employee  after  knowing 
of  the  violation  of  the  Act  shall  not  be  deemed  an  assumption 
of  the  risk.  It  has  been  held  in  some  of  the  State  courts  that 
this  provision  clearly  indicates  the  modification  of  the  terms 
and  limiting  the  applications  theretofore  announced  by  the 
courts  with  reference  to  the  assumption  of  the  risk  by  the 
employee.  See  Texas,  etc.  R.  Co.  v.  Swearingen,  122  Fed.  Eep. 
193.  See  also  Xarramore  v.  Railroad  Co.,  96  Fed.  Rep.  298,  con- 
struing the  Ohio  statute  to  the  same  effect. 

But  it  was  held  by  the  United  States  Circuit  Court  of  Ap- 
peals'for  the  eighth  Circuit  in  Gilbert  v.  Burlington  C.  R.  tfc  N. 
R.  Co.,  128  Fed.  Rep.  529,  affirming  123  Fed.  Rep.  832,  that 
the  devolution  of  the  duty  upon  the  common  carriers  to  so 
equip  their  cars,  that  they  could  be  uncoupled  without  requir- 
ing their  servants  to  go  between  the  ends  of  the  cars,  neces- 
sarily  imposed  upon  their  servants  the  railroad's  duty  of  using 
the  equipment  thus  used  upon  them,  and  refraining  from  go- 
ing between  the  ends  of  the  cars  to  couple  or  uncouple  them 
unless  compelled  to  do  so  t>y  necessity.  Under  this  legislation 
the  breach  of  either  of  these  duties  constituted  a  want  of  ordi- 
nary care  and  constituted  actionable  negligence.  The  Court 
also  said  the  principle  was  applicable,  that  where  there  is 
a  comparatively  safe  and  a  more  dangerous  way  of  discharg- 
ing the  duty  known  to  the  servants,  it  was  negligence  for  him 
to  select  the  more  dangerous  method,   and  if  his  negligence 


§  373.]  THE    SAFETY    ACT    OF    1893,  AMENDED    1896.  391 

contributed  to  his  injury,  his  negligence  is  fatal  to  recovery 
therefore.  See  also  Northern  Pacific  Ry.  Co.  v.  Tynan,  119 
Fed.  Eep.  288,  and  56  C.  C.  A.  192,  ninth  Circuit,  1902,  where 
the  court  left  the  issue  of  contributory  negligence  to  the  jury. 
See  also  Railway  Co.  v.  Raker,  33  C.  C.  A.  468,  91  Fed.  Rep. 
221,  in  the  seventh  Circuit,  where  plaintiff  was  held  guilty  of 
contributory  negligence  for  failing  to  exercise  reasonable  care 
for  his  own  safety  in  the  absence  of  grab  irons  or  hand  holds; 
and  Denver  &  Rio  Grande  R.  Co.  v.  Arrighi,  129  Fed.  Rep. 
317  (  C.  C.  A.,  eighth  Circuit.)  In  this  case  the  Court  said  that 
the  defense  of  contributory  negligence  was  as  available  to  the 
railroad  company  after  as  before  the  passage  of  the  Act  of 
Congress,  although  it  had  not  complied  with  its  requirements. 
In  this  case  the  plaintiff  rested  his  case  entirely  on  the  failure 
of  the  defendant  to  comply  with  the  Act.  The  Court  said 
that  the  rationale  of  the  doctrine  of  assumption  of  risk  was  not 
that  which  supported  the  rule  of  contributory  negligence. 

It  was  held  in  the  Yoelker  case,  supra,  that  a  switchman 
does  not  assume  the  risk  where  the  car  requiring  couplers  is 
not  so  equipped,  and  is  not  marked  or  isolated  as  one  in  bad 
repair,  and  its  movement  at  the  time  is  not  with  the  view  to 
its  isolation  or  repair,  though  he  continues  in  the  employment 
with  knowledge  of  the  unlawful  use  of  the  car. 


AMENDMENT  OF  1903  TO  SAFETY  ACT. 

An  Act  to  amend  an  Act  entitled  "An  act  to  promote  the  safety  of  employ- 
ees and  travelers  upon  railroads  by  compelling  common  carriers  engaged 
in  interstate  commerce  to  equip  their  cars  with  automatic  couplers  and 
continuous  brakes  and  their  locomotives  with  driving-wheel  brakes,  and 
for  other  purposes."  approved  March  second,  eighteen  hundred  and 
ninety-three,  and  amended  April  first,  eighteen  hundred  and  ninety-six. 

§  374.  Amendment  of  1003. — Be  it  enacted  hy  the  Senate  and 
House  of  Representatives  of  the  United  States  of  America  in  C<>n- 
,,,■•  ss  assembled,  That  the  provisions  and  requirements  of  the  Act 
entitled  "An  Act  to  promote  the  safety  of  employees  and  travel- 
ers upon  railroads  by  compelling'  common  carriers  engaged  in 
interstate  commerce  to  equip  their  cars  with  automatic  couplers 
and  continuous  brakes,  and  their  locomotives  with  driving-wheel 
brakes,  and  for  other  purposes,"  approved  March  second, 
eighteen  hundred  and  ninety-three,  and  amended  April  first, 
eighteen  hundred  and  ninety-six,  shall  be  held  to  apply  to 
common  carriers  by  railroads  in  the  Territories  and  the  Dis- 
trict of  Columbia  and  shall  apply  in  all  cases,  whether  or  not 
the  couplers  brought  together  are  of  the  same  kind,  make,  or 
type;  and  the  provisions  and  requirements  hereof  and  of  said 
acts  relating  to  train  brakes,  automatic  couplers,  grab  irons, 
and  the  height  of  drawbars  shall  be  held  to  apply  to  all  trains, 
locomotives,  tenders,  cars,  and  similar  vehicles  used  on  any 
railroad  engaged  in  interstate  commerce,  and  in  the  Ter- 
ritories and  the  District  of  Columbia,  and  to  all  other  locomo- 
tives, tenders,  cars,  and  similar  vehicles  used  in  connection 
therewith,  excepting  those  trains,  cars,  and  locomotives  ex- 
empted by  the  provisions  of  section  six  of  said  act  of  March 
second,  eighteen  hundred  and  ninety-three,  as  amended  by 
the  act  of  April  first,  eighteen  hundred  and  ninety-six,  or 
which  are  used  upon  street  railways. 

Skc.  2.  That  whenever,  as  provided  in  said  act,  any  train 
is  operated  with  power  or  train  brakes,  not  less  than  fifty  per 
centum  of  the  cars  in  such  train  shall  have  their  brakes  used 
and  operated  by  the  engineer  of  the  locomotive  drawing  such 
train;  and  all  power-brake  cars  in  such  train  which  are  asso- 
ciated together  with  said  fifty  per  centum  shall  have  their 
brakes  so  used  and  operated;  and,  to  more  fully  carry  into 
effect  the  objects  of  said  act,  the  Interstate  Commerce  Com- 
mission may,  from  time  to  time,  after  full  hearing,  increase  the 
minimum  percentage  of  cars  in  any  train  required  to  be  operated 


§  374.]  AMENDMENT    OF    1903    TO    SAFETY'    ACT.  393 

with  power  or  train  brakes  which  must  have  their  brakes  used 
and  operated  as  aforesaid;  and  failure  to  comply  with  an  y  such 
requirement  of  the  said  Interstate  Commerce  Commission  shall 
be  subject  to  the  like  penalty  as  failure  to  comply  with  any 
requirement  of  this  section. 

Sec  3.  That  the  provisions  of  this  act  shall  not  take  effect 
until  September  first,  nineteen  hundred  and  three.  Nothing 
in  this  act  shall  be  held  or  construed  to  relieve  any  common 
carrier,  the  Interstate  Commerce  Commission,  or  any  United 
States  district  attorney  from  any  of  the  provisions,"  powers, 
duties  liabilities,  or  requirements  of  said  act  of  March  second, 
eighteen  hundred  and  ninety-three,  as  amended  by  the  act  of 
April  first,  eighteen  hundred  and  ninety-six;  and  all  of  the  pro- 
visions, powers,  duties,  requirements  and  liabilities  of  said 
act  of  March  second,  eighteen  hundred  and  ninety-three,  as 
amended  by  the  act  of  April  first,  eighteen  hundred  and 
ninety-six,  shall,  except  as  specifically  amended  by  this  act, 
apply  to  this  act. 


THE  ACCIDENT  LAW  OF  MARCH  3,  1901. 

An  Act  requiring  common  carriers  engaged  in  interstate  commerce  to 
make  fall  reports  of  all  accidents  to  the  Interstate  Commerce  Com- 
missior 

§  375.  Monthly  reports  of  railway  accidents.  —  Zfe  it 
by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled:  Sec  1.  It 
shall  be  the  duty  of  the  general  manager,  superintendent,  or 
other  proper  ollicer  of  every  common  carrier  engaged  in  inter- 
state commerce  by  railroad  to  make  to  the  Interstate  Com- 
merce Commission,  at  its  office  in  Washington,  District  of 
Columbia,  a  monthly  report,  under  oath,  of  all  collisions  of 
trains,  or  where  any  train  or  part  of  a  train  accidentally  leaves 
the  track,  and  of  all  accidents  which  may  occur  to  its  passen- 
gers or  employees  while  in  the  service  of  such  common  car- 
rier and  actually  on  duty,  which  report  shall  state  the  nature 
and  causes  thereof,  and  the  circumstances  connected  there- 
with. 

Sec  2.  That  any  common  carrier  failing  to  make  such  re- 
port within  thirty  days  after  the  end  of  any  month  shall  be 
deemed  guilty  of  a  misdemeanor  and,  upon  conviction  thereof 
by  a  court  of  competent  jurisdiction,  shall  be  punished  by  a 
fine  of  not  more  than  a  hundred  dollars  for  each  and  every 
offense  and  for  every  day  during  which  it  shall  fail  to  make 
such  report  after  the  time  herein  specified  for  making  the 
same. 

Sec  3.  That  neither  said  report  nor  any  part  thereof  shall 
be  admitted  as  evidence  or  used  for  any  purpose  against  such 
railroad  so  making  such  report  in  any  suit  or  action  for  dam- 
ages growing  out  of  any  matter  mentioned  in  said  report. 

Sec.  4.  That  the  Interstate  Commerce  Commission  is  au- 
thorized to  prescribe  for  such  common  carriers  a  method  and 
form  for  making  the  reports  in  the  foregoing  section  pro- 
vided. 

This  Act  by  the  terms  requires  the  report  of  all  accidents  by 
railroad  carriers  engaged  in  interstate  commerce.  A  carrier 
whose  line  lies  wholly  writhin  one  state  may  engage  in  inter- 
state commerce  when  it  is  a  party  to  through  interstate  rout- 
ing, and  the  accidents  required  to  be  reported,  may  have  no 
relation  to  the  interstate  traffic. 


FEDERAL  LABOR  STATUTES. 

§  376.  The  National  Trade  Union  Incorporation  Act.— 

The  Act  of  June  29,  1880,  legalizes  the  incorporation  of  Na- 
tional Trades  Unions,  3  Compiled  Statutes  3204: 

"National  Trade  Unions"  defined.— i?e   it  enacted,  etc.: 

Sec.  1.  That  the  term  "National  Trade  Union,"  in  the  mean- 
ing of  this  act,  shall  signify  an  association  of  working  people 
havino-  two  or  more  branches  in  the  States  or  Territories  of 
the  United  States  for  the  purpose  of  aiding  its  members  to 
become  more  skillful  and  efficient  workers,  the  promotion  of 
their  general  intelligence,  the  elevation  of  their  character,  the 
regulation  of  their  wages  and  their  hours  and  conditions  of 
labor,  the  protection  of  their  individual  rights  in  the  prosecu- 
tion of  their  trade  or  trades,  the  raising  of  funds  for  the  bene- 
fit of  sick,  disabled,  or  unemployed  members,  or  the  families 
of  deceased  members,  or  for  such  other  object  or  objects  for 
which  working  people  may  lawfully  combine,  having  in  view 
their  mutual  protection  or  benefit. 

Incorporation. —  Sec.  2.  That  National  Trade  Unions  shall, 
upon  filing  their  articles  of  incorporation  in  the  office  of  the 
recorder  of  the  District  of  Columbia,  become  a  corporation 
under  the  technical  name  by  which  said  National  Trade  Union 
desires  to  be  known  to  the  trade;  and  shall  have  the  right  to 
sue  and  be  sued,  to  implead  and  be  impleaded,  to  grant  and 
receive,  in  its  corporate  or  technical  name,  property,  real, 
personal,  and  mixed,  and  to  use  said  property  and  the  pro- 
ceeds and  income  thereof,  for  the  objects  of  said  corporation 
as  in  its  charter  defined:  Provided,  That  each  Union  shall 
hold  only  so  much  real  estate  as  may  be  required  for  the  im- 
mediate purposes  of  its  incorporation. 

Constitution,  rules,  and  by-laws.— Sec  3.  That  an  incor- 
porated National  Trade  Union  shall  have  power  to  make  and 
establish  such  constitution,  rules,  and  by-laws  as  it  may  deem 
proper  to  carry  out  its  lawful  objects,  and  the  same  to  alter, 
amend,  add  to,  or  repeal  at  pleasure. 

Duties  of  officers. —  Sec  4.  That  an  incorporated  National 
Trade  Union  shall  have  power  to  define-  the  duties  and  pow- 
ers of  all  its  officers,  and  prescribe  their  mode  of  election  and 
term  of.  office,  to  establish  branches  and  sub-unions  in  any 
territory  of  the  United  States. 

Headquarters. — Sec  5.  That  the  headquarters  of  an  incor- 
porated National  Trade  Union  shall  be  located  in  the  District 
of  Columbia.     See  supra,  p. — - 


NATIONAL  ARBITRATION  ACT. 

A.t  of  June  1,  1898,  3  Compiled  Statutes,  3205. 

* 

An  Act  concerning  carriers  engaged  in  interstate  commerce  and  their 

employees. 

?;  :}??.  H  it  enacted  by  the  Senate  and  House  of  Representee 
-'  ■  ?  of  the  United  States  of  America  in  Congress  assembled: 
Sec.  i.  That  the  provisions  of  this  act  shall  apply  to  any 
common  carrier  or  carriers  and  their  officers,  agents,  and  em- 
ployees, except  masters  of  vessels  and  seamen,  as  defined  in 
section  forty-six  hundred  and  twelve,  Revised  Statutes  of  the 
United  States,  engaged  in  the  transportation  of  passengers  or 
property  wholly  by  railroad,  or  partly  by  railroad  and  partly 
by  water,  for  a  continuous  carriage  or  shipment,  from  one 
State  or  Territory  of  the  United  States,  or  the  District  of 
Columbia,  to  any  other  State  or  Territory  of  the  United 
States  or  the  District  of  Columbia,  or  from  any  place  in  the 
United  States  to  an  adjacent  foreign  country,  or  from  any 
place  in  the  United  States  through  a  foreign  country  to  any 
other  place  in  the  United  States. 

The  term  "railroad"  as  used  in  this  act  shall  include  all 
bridges  and  ferries  used  or  operated  in  connection  with  any 
railroad,  and  also  all  the  road  in  use  by  any  corporation  oper- 
ating a  railroad,  whether  owned  or  operated  under  a  contract, 
agreement,  or  lease;  and  the  term  "transportation  "  shall  in- 
clude all  instrumentalities  of  shipment  or  carriage. 

The  term  "employees"  as  used  in  this  Act  shall  include  all 
persons  actually  engaged  in  any  capacity  in  train  operation  or 
train  service  of  any  discription,  and  notwithstanding  that  the 
cars  upon  or  in  which  they  are  employed  may  be  held 
and  operated  by  the  carrier  under  lease  or  other  contract; 
Provided,  however,  That  this  act  shall  not  be  held  to  apply  to 
employees  of  street  railroads  and  shall  apply  only  to  em- 
ployees engaged  in  railroad  train  service.  In  every  such  case 
the  carrier  shall  be  responsible  for  the  acts  and  defaults 
of  such  employees  in  the  same  manner  and  to  the  same  extent 
as  if  said  cars  were  owned  by  it  and  said  employees  directly 
employed  by  it,  and  any  provisions  to  the  contrary  of  any 
such  lease  or  other  contract  shall  be  binding  only  as  between 
the  parties  thereto  and  shall  not  affect  the  obligations  of  said 
carrier  either  to  the  public  or  to  the  private  parties  concerned. 

Sec.  2.  That  whenever  a  controversy  concerning  wages, 
hours  of  labor,  or  conditions  of  employment  shall  arise  be- 
tween a  carrier  subject   to  this  act  and  the  employees  of  such 


§    377.]  NATIONAL    ARBITRATION    ACT.  397 

carrier,  seriously  interrupting  or  threatening  to  interrupt  the 
business  of  said  carrier,  the  chairman  of  the  Interstate'  Com- 
merce Commission  and  the  Commissioner  of  Labor  shall,  upon 
the  request  of  either  party  to  the  controversy,  with  all  prac- 
ticable expedition,  put  themselves  in  communication  with  all 
parties  to  the  controversy,  and  shall  use  their  best  efforts,  by 
mediation  and  conciliation,  to  amicably  settle  the  same;  and 
if  such  efforts  shall  be  unsuccessful,  shall  at  once  endeavor  to 
bring  about  an  arbitration  of  said  controversy  in  accordance 
with  the  provisions  of  this  act. 

Sec.  3.  That  whenever  a  controversy  shall  arise  between  a 
carrier  subject  to  this  act  and  the  employees  of  such  carrier 
which  cannot  be  settled  by  mediation  and  conciliation  in  the 
manner  provided  in  the  preceding  section,  said  controversy 
may  be  submitted  to  the  arbitration  of  a  board  of  three  per- 
sons, who  shall  be  chosen  in  the  manner  following:  One  shall 
be  named  by  the  carrier  or  employer  directly  interested; 
the  other  shall  be  named  by  the  labor  organization  to  which  the 
employees  directly  interested  belong,  or,  if  they  belong  to 
more  than  one,  by  that  one  of  them  which  specially  represents 
employees  of  the  same  grade  and  class  and  engaged  in  ser- 
vices of  the  same  nature  as  said  employees  so  directly  inter- 
ested:  Provided,  however,  That  when  a  controversy  involves 
and  effects  the  interests  of  two  or  more  classes  and  grades  of 
employees  belonging  to  different  labor  organizations,  such 
arbitrator  shall  be  agreed  upon  and  designated  by  the  con- 
current action  of  all  such  labor  organizations;  and  in  cases 
where  the  majority  of  such  employees  are  not  members  of  any 
labor  organization,  said  employees  may  by  a  majority  vote 
select  a  committee  of  their  own  number,  which  committee 
shall  have  the  right  to  select  the  arbitrator  on  behalf  of  said 
employees.  The  two  thus  chosen  shall  select  the  third  com- 
missioner of  arbitration;  but,  in  the  event  of  their  failure  to 
name  such  arbitrator  within  five  days  after  their  first  meet- 
ing, the  third  arbitrator  shall  be  named  by  the  commissioners 
named  in  the  preceding  section.  A  majority  of  said  arbit- 
rators shall  be  competent  to  make  a  valid  and  binding  award 
under  the  provisions  hereof.  The  submission  shall  be  in  writ- 
ing, shall  be  signed  by  the  employer  and  by  the  labor  organ- 
ization representing  the  employees,  shall  specify  the  time  and 
place  of  meeting  of  said  board  of  arbitration,  shall  state  the 
questions  to  be  decided,  and  shall  contain  appropriate  provis- 
ions by  which  the  respective  parties  shall- stipulate,  as  follows: 

First.  That  the  board  of  arbitration  shall  commence  their 
hearings  within  ten  days  from  the  date  of  the  appointment  of 
the  third  aibitrator,  and  shall  find  and  file  their  award,  as 
provided  in  this  section,  within  thirty  days  from  the  date  of 
the  appointment  of  the  third  arbitrator;  and  that  pending  the 
arbitration   the  status  existing  immediately  prior  to  the  dis- 


393  NATIONAL    ARBITRATION    ACT.  [Sec.  4. 

pute  shall  not  be  changed:  Provided,  That  no  employee  shall 
be  compelled  to  render  personal  service  without  his  consent. 

Second.  That  the  award  and  the  papers  and  proceedings, 
including  the  testimony  relating  thereto  certified  under  the 
hands  of  the  arbitrators  and  which  shall  have  the  force  and 
effect  of  a  bill  of  exceptions,  shall  be  filed  in  the  clerk's  office 
of  the  circuit  court  of  the  United  States  for  the  district 
wherein  the  controversy  arises  or  the  arbitration  is  entered 
into,  and  shall  be  final  and  conclusive  upon  both  parties,  un- 
t  aside  for  error  of  law  apparent  on  the  record. 

Third.  That  the  respective  parties  to  the  award  will  each 
faithfully  execute  the  same,  ami  that  the  same  may  be  spec- 
ifically enforced  in  equit}7"  so  far  as  the  powers  of  a  court  of 
equity  permit:  Provided,  That  no  injunction  or  other  legal 
process  shall  be  issued  which  shall  compel  the  performance 
by  any  laborer  against  his  will,  of  a  contract  for  personal  labor 
or  service. 

fourth.  That  employees  dissatisfied  with  the  award  shall 
not  by  reason  of  such  dissatisfaction  quit  the  service  of  the 
employer  before  the  expiration  of  three  months  from  and  after 
the  making  of  such  award  without  giving  thirty  days'  notice 
in  writing  of  their  intention  so  to  quit.  Xor  shall  the  em- 
ployer dissatisfied  with  such  award  dismiss  any  employee  or 
employees  on  account  of  such  dissatisfaction  before  the  expir- 
ation of  three  months  from  and  after  the  making  of  such 
award  without  giving  thirty  days'  notice  in  writing  of  his 
intention  so  to  discharge. 

Fifth.  That  said  award  shall  continue  in  force  as  between 
the  parties  thereto  for  the  period  of  one  year  after  the  same 
shall  go  into  practical  operation,  and  no  new  arbitration  upon 
the  same  subject  between  the  same  employer  and  the  same 
class  of  employees  shall  be  had  until  the  expiration  of  said  one 
year  if  the  award  is  not  set  aside  as  provided  in  section  four. 
That  as  to  individual  employees  not  belonging  to  the  labor 
organization  or  organizations  which  shall  enter  into  the  arbi- 
tration, the  said  arbitration  and  the  award  made  therein  shall 
not  be  binding,  unless  the  said  individual  employees  shall  give 
assent  in  writing  to  become  parties  to  said  arbitration. 

Sec.  4.  That  the  award  being  filed  in  the  clerk's  office  of  a 
circuit  court  of  the  United  States,  as  hereinbefore  provided, 
shall  go  into  practical  operation,  and  judgment  shall  be  entered 
thereon  accordingly  at  the  expiration  of  ten  days  from  such 
tiling,  unless  within  such  ten  days  either  party  shall  file  excep- 
tions thereto  for  matter  of  law  apparent  upon  the  record,  in 
which  case  said  award  shall  go  into  practical  operation  and 
judgment  be  entered  accordingly  when  such  exceptions  shall 
have  been  finally  disposed  of  either  by  said  circuit  court  or 
on  appeal  therefrom. 

At  the  expiration  of  ten  dats  from  the  decision  of  the  cir- 


§  377.]  NATIONAL    ARBITRATION    ACT.  399 

cuit  court  upon  the  exceptions  taken  to  said  award,  as  afore- 
said, judgment  shall  be  entered  in  accordance  with  said  decision 
unless  during  said  ten  days  either  part}'  shall  appeal  therefrom 
to  the  circuit  court  of  appeals,  in  such  case  only  such  por- 
tion of  the  record  shall  be  transmitted  to  the  Appellate  Court 
as  is  necessary  to  the  proper  understanding  and  consideration 
of  the  questions  of  law  presented  by  said  exceptions  and  to  be 
decided. 

The  determination  of  said  circuit  court  of  appeals  upon 
said  questions  shall  be  final,  and  being  certified  by  the  clerk 
thereof  to  said  circuit  court,  judgment  pursuant  thereto  shall 
thereupon  be  entered  by  said  circuit  court. 

If  exceptions  to  an  award  are  finally  sustained,  judgment 
shall  be  entered  setting  aside  the  award.  But  in  such  case  the 
parties  may  agree  upon  a  judgment  to  be  entered  disposing  of 
the  subject-matter  of  the  controversy,  which  judgment  when 
entered  shall  have  the  same  force  and  effect  as  judgment 
entered  upon  an  award. 

Sec.  5.  That  for  the  purposes  of  this  act  the  arbitrators 
herein  provided  for,  or  either  of  them,  shall  have  power  to  ad- 
minister oaths  and  affirmations,  sign  subpoenas,  require  the 
attendance  and  testimony  of  witnesses,  and  the  production  of 
such  books,  papers,  contracts,  agreements,  and  documents  ma- 
terial to  a  just  determination  of  the  matters  under  investiga- 
tion as  may  be  ordered  by  the  court;  and  may  invoke  the  aid 
of  the  United  States  courts  to  compel  witnesses  to  attend  and 
testify  and  to  produce  such  books,  papers,  contracts,  agree- 
ments and  documents  to  the  same  extent  and  under  the  same 
conditions  and  penalties  as  is  provided  for  in  the  act  to  regu- 
late commerce,  approved  February  fourth,  eighteen  hundred 
and  eighty-seven,  and  the  amendments  thereto. 

Sec  6.  That  every  agreement  of  arbitration  under  this  act 
shall  be  acknowledged  by  the  parties  before  a  notary  public 
or  clerk  of  a  district  or  circuit  court  of  the  United  States, 
and  when  so  acknowledged  a  copy  of  the  same  shall  be  trans- 
mitted to  the  chairman  of  the  interstate  Commerce  Commis- 
sion, who  shall  file  the  same  in  the  office  of  said  Commission. 

Any  agreement  of  arbitration  which  shall  be  entered  into 
conforming  to  this  act,  except  that  it  shall  be  executed  by 
employees  individually  instead  of  by  a  labor  organization  as 
their  representative,  shall,  when  duly  acknowledged  as  herein 
provided,  be  transmitted  to  the  chairman  of  the  Interstate 
Commerce  Commission,  who  shall  cause  a  notice  in  writing  to 
be  served  upon  the  arbitrators,  fixing  a  time  and  place  for  a 
meeting  of  said  board,  which  shall  be  within  fifteen  days  from 
the  execution  of  said  agreement  of  arbitration:  .Provided,  how- 
ever, That  the  said  chairman  of  the  Interstate  Commerce  Com- 
mission shall  decline  to  call  a  meetihg  of  arbitrators  under 
such  agreement  unless  it  be  shown  to  his  satisfaction  that  the 


400  NATIONAL    ARBITRATION    ACT.  [SeCS.  7-9. 

employees  signing  the  submission  represent  or  include  a  major- 
ity of  all  employees  in  the  service  of  the  same  employer  and  of 
the  same  grade  and  class,  and  that  an  award  pursuant  to  said 
submission  can  justly  be  regarded  as  binding  upon  all  such 
employees. 

Sec.  7.  That  during  the  pendency  of  arbitration  under  this 
act  it  shall  not  be  lawful  for  the  employer,  party  to  such  ar- 
bitration, to  discharge  the  employees,  parties  thereto,  except 
for  inefficiency,  violation  of  law,  or  neglect  of  duty;  nor  for 
the  organization  representing  such  employees  to  order,  nor  for 
employees  to  unite  in,  aid,  or  abet,  strikes  against  said  em- 
ployer;  nor,  during  a  period  of  three  months  after  an  award 
under  such  an  arbitration,  for  such  employer  to  discharge  any 
such  employees,  except  for  the  causes  aforesaid,  without  giv- 
ing thirty  days' written  notice  of  an  intent  so  to  discharge; 
nor  for  any  of  such  employees,  during  a  like  period,  to  quit 
the  service  of  said  employer  without  just  cause,  without  giving 
to  said  employer  thirty  days'  written  notice  of  an  intent  so  to 
do;  nor  for  such  organization  representing  such  employees  to 
order,  counsel,  or  advise  otherwise.  Any  violation  of  this  sec- 
tion shall  subject  the  offending  party  to  liability  for  damages: 
Provided,  That  nothing  herein  contained  shall  be  construed 
to  prevent  any  employer,  party  to  such  arbitration,  from  re- 
ducing the  number  of  its  or  his  employees  whenever  in  its  or 
his  judgment  business  necessities  require  such  reduction. 

Sec  8.  That  in  every  incorporation  under  the  provisions  of 
chapter  live  hundred  and  sixty-seven  of  the  United  States 
Statutes  of  eighteen  hundred  and  eighty-five  and  eighteen 
hundred  and  eighty-six  it  must  be  provided  in  the  articles  of 
incorporation  and  in  the  constitution,  rules,  and  by-laws  that 
a  member  shall  cease  to  be  such  by  participating  in  or  by  in- 
stigating force  or  violence  against  persons  or  property  during 
strikes,  lockouts,  or  boycotts,  or  by  seeking  to  prevent  others 
from  working  through  violence,  threats,  or  intimidations. 
Members  of  such  incorporations  shall  not  be  personally  liable 
for  the  acts,  debts,  or  obligations  of  the  corporations,  nor  shall 
such  corporations  be  liable  for  the  acts  of  members  or  others 
in  violation  of  law;  and  such  corporations  may  appear  by  des- 
ignated representatives  before  the  board  created  by  this  act, 
or  in  any  suits  or  proceedings  for  or  against  such  corporations 
or  their  members  in  any  of  the  federal  courts. 

Sec  9.  That  whenever  receivers  appointed  by  federal  courts 
are  in  the  possession  and  control  of  railroads,  the  employees 
upon  such  railroads  shall  have  the  right  to  be  heard  in  such 
courts  upon  all  questions  affecting  the  terms  and  conditions  of 
their  employment,  through  the  officers  and  representatives  of 
their  associations,  whether  incorporated  or  unincorporated, 
and  no  reduction  of  wages  shall  be  made  by  such  receivers 
without  the  authority  of  the  court  therefor  upon  notice  to  such 
employees,  said  notice  to  be  not  less  than  twenty  days  before 


§   377.]  NATIONAL    ARBITRATION    ACT.  401 

the  hearing  upon  the  receivers'  petition  or  application,  and  to 
be  posted  upon  all  customary  bulletin  boards  along  or  upon 
the  railway  operated  by  such  receiver  or  receivers. 

Sec  10.  That  any  employer  subject  to  the  provisions  of  this 
act  and  any  officer,  agent,  or  receiver  of  such  employer  who 
shall  require  any  employee,  or  any  person  seeking  employ- 
ment, as  a  condition  of  such  emplovment,  to  enter  into  an 
agreement  ,  either  written  or  verbal,  not  to  become  or  remain 
a  member  of  any  labor  corporation,  association,  or  organization ; 
or  shall  threaten/ any  employee  with  loss  of  employment,  or 
shall  unjustly  discriminate  against  any  employee  because  of 
his  membership  in  such  a  corporation,  association,  or  organiza- 
tion; or  who  shall  require  any  employee  or  any  person  seek- 
ing employment,  as  a  condition  of  such  employment,  to  enter 
into  a  contract  whereby  such  employee  or  applicant  for  em- 
ployment shall  agree  to  contribute  to  any  fund  for  charitable, 
social,  or  beneficial  purposes;  to  release  such  employer  from 
legal  liability  for  any  personal  injury  by  reason  of  any  benefit 
received  from  such  fund  beyond  the  proportiton  of  the  benefit 
arising  from  the  employer's  contribution  to  such  fund  ;  or  who 
shall,  after  having  discharged  an  employee,  attempt  or  conspire 
to  prevent  such  employee  from  obtaining  employment,  or  who 
shall,  after  the  quitting  of  an  employee,  attempt  or  conspire  to 
prevent  such  employee  from  obtaining  employment,  is  here- 
by declared  to  be  guilty  of  a  misdemeanor,  and,  upon  convic- 
tion thereof  in  any  court  of  the  United  States  of  competent 
jurisdiction  in  the  district  in  which  such  offense  was  commit- 
ted, shall  be  punished  for  each  offense  by  a  fine  of  not  less 
than  one  hundred  dollars  and  not  more  than  one  thousand 
dollars. 

Sec.  11.  That  each  member  of  said  board  of  arbitration  shall 
receive  a  compensation  of  ten  dollars  per  day  for  the  time  he 
is  actually  employed,  and  his  traveling  and  other  necessary 
expenses;  and  a  sum  of  money  sufficient  to  pay  the  same,  to- 
gether with  the  traveling  and  other  necessary  and  proper  ex- 
penses of  any  conciliation  or  arbitration  had  hereunder,  not  to 
exceed  ten  thousand  dollars  in  any  one  year,  to  be  approved 
by  the  chairman  of  the  Interstate  Commerce  Commission  and 
audited  by  the  proper  accounting  officers  of  the  Treasury,  is 
hereby  appropriated  for  the  fiscal  years  ending  June  thirtieth, 
eighteen  hundred  and  ninety-eight  and  June  thirtieth  eighteen 
hundred  and  ninety-nine,  out  of  any  money  in  the  Treasury 
not  otherwise  appropriated. 

Sec  12.  That  the  Act  to  create  boards  of  arbitration  or 
commission  for  settling  controversies  and  differences  between 
railroad  corporations  and  other  common  carriers  engaged  in 
interstate  or  territorial  transportation  of  property  or  persons 
and  their  employees,  approved  October  first,  eighteen  hundred 
and  eighty-eight,  is  hereby  repealed. 

As  to  this  Act,  see  siipra,  p.  119. 
20 


PROCEDURE  BEFORE  INTERSTATE  COMMERCE 
COMMISSION. 


>  278.  Rules  of  Practice  Before  the  Commission  in  Cases  and 
Proceedings  Under  the  Act  to  Regulate  Commerce. 


I. 

PUBLIC    SESSIONS 

The  general  sessions  of  the  Commission  for  hearino;  con- 
tested  cases  will  be  held  at  its  office  in  the  Sun  Building  No. 
1317  F  street  NW.,  Washington,  D.  C,  on  such  days  and  at 
such  hour  as  the  Commission  may  designate. 

When  special  sessions  are  held  at  other  places,  such  regula- 
tions as  may  be  necessary  will  be  made  by  the  Commission. 

Sessions  for  receiving,  considering,  and  acting  upon  peti- 
tions, applications,  and  other  communications,  and  also  for 
considering  and  acting  upon  any  business  of  the  Commission 
other  than  the  hearing  of  contested  cases,  will  be  held  at  its 
said  office  at  11  o'clock  a.  m.  daily  when  the  Commission  is  in 
"Washington. 

II. 

PARTIES    TO   CASES. 

Any  person,  firm,  company,  corporation,  or  association,  mer- 
cantile, agricultural,  or  manufacturing  society,  body  politic  or 
municipal  organization,  or  the  railroad  commissioner  or  commis- 
sion of  any  State  or  Territory,  may  complain  to  the  Commission 
by  petition,  of  anything  done,  or  omitted  to  be  done,  in  violation 
of  the  provisions  of  the  Act  to  Regulate  Commerce  by  any  com- 
mon carrier  or  carriers  subject  to  the  provisions  of  said  Act. 
Where  a  complaint  relates  to  the  rates  or  practices  of  a  single 
carrier,  no  other  carrier  need  be  made  a  party,  but  if  it  relates 
to  matters  in  which  two  or  more  carriers,  engaged  in  trans- 
portation by  continuous  carriage  or  shipment,  are  interested, 
the  several  carriers  participating  in  such  carriage  or  shipment 
are  proper  parties  defendant. 

AVhere  a  complaint  relates  to  rates  or  practices  of  carriers 
operating  different  lines,  and  the  object  of  the  proceeding  is 
to  secure  correction  of  such  rates  or  practices  on  each  of  said 


Ill,  IV.]  KDLES    OF    PRACTICE.  403 

lines,  all  the  carriers  operating  such  lines  must  be  made  de- 
fendants. 

When  the  line  of  a  carrier  is  operated  by  a  receiver  or  trus- 
tee, both  the  carrier  and  its  receiver  or  trustee  should  be  made 
defendants  in  cases  involving1  transportation  over  such  line. 

Persons  or  carriers  not  parties  may' petition  in  any  proceed- 
ing for  leave  to  intervene  and  be  heard  therein.  Such  peti- 
tion shall  set  forth  the  petitioner's  interest  in  the  proceeding. 
Leave  granted  on  such  application  shall  entitle  the  intervener 
to  appear  and  be  treated  as  a  party  to  the  proceeding,  but  no 
person,  not  a  carrier,  who  intervenes  in  behalf  of  the  defense, 
shall  have  the  right  to  file  an  answer  or  otherwise  become  a 
party,  except  to  have  notice  of  and  appear  at  the  taking  of 
testimony,  produce  and  cross-examine  witnesses,  and  be  heard 
in  person  or  by  counsel  on  the  argument  of  the  case. 

III. 

COMPLAINTS. 

Complaints  of  unlawful  acts  or  practices  by  any  common 
carrier,  made  in  pursuance  of  section  13  of  the  Act  to  Regulate 
Commerce,  must  be  by  petition,  setting  forth  briefly  the  facts 
claimed  to  constitute  a  violation  of  the  law.  The  name  of 
the  carrier  or  carriers  complained  against  must  be  stated  in 
full,  and  the  address  of  the  petitioner,  with  the  name  and 
address  of  his  attorney  or  counsel,  if  any,  must  appear  upon 
the  petition.  The  complainant  must  furnish  as  many  copies 
of  the  petition  as  there  may  be  parties  complained  against  to 
be  served. 

The  Commission  will  cause  a  copy  of  the  petition,  with 
notice  to  satisfy  or  answer  the  same  within  a  specified  time, 
to  be  served,  personally  or  by  mail  in  its  discretion,  upon  each 
carrier  complained  against. 

IY. 

ANSWERS. 

A  carrier  complained  against  must  answer  within  twenty 
days  from  the  date  of  the  notice  above  provided  for,  but  the 
Commission  may,  in  a  particular  case,  require  the  answer  to 
be  filed  within  a  shorter  time.  The  time  prescribed  in  any 
case  may  be  extended,  upon  good  cause  shown,  by  special 
order  of  the  Commission.     The  original  answer  must  be  filed, 


404  RULES    OF    PRACTICE.  [V-YII. 

with  the  Secretary  of  the  Commission  at  its  office  in  Wash- 
ington, and  a  copy  thereof  at  the  same  time  served,  person- 
ally or  by  mail,  upon  the  complainant,  who  must  forthwith 
notify  the  secretary  of  its  receipt.  The  answer  must  specif- 
ically admit  or  deny  the  material  allegations  of  the  petition, 
and  also  set  forth  the  facts  which  will  be  relied  upon  to  sup- 
port any  such  denial.  If  a  carrier  complained  against  shall 
make  satisfaction  before  answering,  a  written  acknowledge 
ment  thereof,  showing  the  character  and  extent  of  the  satis- 
faction given,  must  be  filed  by  the  complainant,  and  in  that 
case  the  fact  and  manner  of  satisfaction,  without  other  matter, 
may  be  set  forth  in  the  answer.  If  satisfaction  be  made  after 
the  filing  and  service  of  an  answer,  such  written  acknowledg- 
ment must  also  be  filed  by  the  complainant,  and  a  supplemen- 
tal answer  setting  forth  the  fact  and  manner  of  satisfaction 
must  be  filed  by  the  carrier. 

y. 

NOTICE    IN    NATURE    OF    DEMURRER. 

A  carrier  complained  against  who  deems  the  petition  insuf- 
ficient to  show  a  breach  of  legal  duty,  may,  instead  of  answer- 
ing, or  formally  demurring,  serve  on  the  complainant  notice  of 
hearing  on  the  petition;  and  in  such  case  the  facts  stated  in 
the  petitition  will  be  deemed  admitted.  A  copy  of  the  notice 
must  at  the  same  time  be  filed  with  the  Secretary  of  the  Com- 
mission. The  films:  of  an  answer,  -however,  will  not  be  deemed 
an  admission  of  the  sufficiency  of  the  petition,  but  a  motion  to 
dismiss  for  insufficiency  may  be  made  at  the  hearing. 

VI. 

SERVICE    OF    PAPERS. 

Copies  of  notices  or  other  papers  must  be  served  upon  the 
adverse  party  or  parties,  personally  or  by  mail;  and  when  any 
party  has  appeared  by  attorney,  service  upon  such  attorney 
shall  be  deemed  proper  service  upon  the  party. 

VII. 

AFFIDAVITS. 

Affidavits  to  any  pleading  or  application  may  be  made  be- 
fore any  officer  of  the  United  States,  or  of  any  State  or  Terri- 
tory, authorized  to  administer  oaths. 


VIII-XL]  RULES    OF    PRACTICE.  405 

Till. 

AMENDMENTS. 

Upon  application  of  any  party,  amendments  to  any  petition 
or  answer,  in  any  proceeding  or  investigation,  may  be  allowed 
by  the  Commission  in  its  discretion. 

IX. 

ADJOURNMENTS    AND    EXTENSIONS    OF    TIME. 

Adjournments  and  extensions  of  time  may  be  granted  upon 
the  application  of  any  party  in  the  discretion  of  the  Commis- 
sion. 

X. 

STIPULATIONS. 

The  parties  to  any  proceeding  or  investigation  before  the 
Commission  may,  by  stipulation  in  writing  filed  with  the  Sec- 
retary, agree  upon  the  facts,  or  any  portion  thereof  involved 
in  the  controversy,  which  stipulation  shall  be  regarded  and 
used  as  evidence  on  the  hearing.  It  is  desired  that  the  facts 
be  thus  agreed  upon  whenever  practicable. 

XL 

HEARINGS. 

Upon  issue  being  joined  by  the  service  of  an  answer  or 
notice  of  hearing  on  the  petition,  the  Commission  will  assign 
a  time  and  place  for  hearing  the  case,  which  will  be  at  its 
office  in  Washington,  unless  otherwise  ordered.  "Witnesses  will 
be  examined  orally  before  the  Commission,  unless  their  testi- 
mony be  taken  or  the  facts  be  agreed  upon  as  provided  for  in 
these  rules.  The  complainant  must  in  all  cases  establish  the 
facts  alleged  to  constitute  a  violation  of  the  law,  unless  the 
carrier  complained  against  admits  the  same  or  fails  to  answer 
the  petition.  The  carrier  must  also  prove  facts  alleged  in  the 
answer,  unless  admitted  by  the  petitioner,  and  fully  disclose 
its  defense  at  the  hearing. 

In  case  of  failure  to  answer,  the  Commission  will  take  such 
proof  of  the  facts  as  may  be  deemed  proper  and  reasonable, 
and  make  such  order  thereon  as  the  circumstances  of  the  case 
appear  to  require. 


406  RULES    OF    PRACTICE.  [XII. 

Cases  may  be  argued  orally  upon  submission  of  the  testi- 
mony, unless  a  different  time  shall  be  agreed  upon  by  the 
parties  or  directed  by  the  Commission,  but  oral  argument  may 
be  omitted  in  the  discretion  of  the  Commission. 

XII. 

DEPOSITIONS. 

The  testimony  of  any  witness  may  be  taken  by  deposition, 
at  the  instance  of  a  party,  in  any  proceeding  or  investigation 
before  the  Commission,  and  at  any  time  after  the  same  is  at 
issue.  The  Commission  may  also  order  testimony  to  be  taken 
by  deposition,  in  any  proceeding  or  investigation  pending  be- 
fore it,  at  any  stage  of  such  proceeding  or  investigation. 
Such  depositions  may  be  taken  before  any  judge  of  any  court 
of  the  United  States,  or  any  commissioner  of  a  circuit,  or  any 
clerk  of  a  district  or  circuit  court,  or  any  chancellor,  justice, 
or  judge  of  a  supreme  or  superior  court,  mayor  or  chief  mag- 
istrate of  a  city,  judge  of  a  county  court,  or  court  of  common 
pleas  of  any  of  the  United  States,  or  any  notary  public,  not 
being  of  counsel  or  attorney  to  either  of  the  parties,  or  other- 
wise interested  in  the  proceeding  or  investigation.  Reason- 
able notice  must  be  given  in  writing  by  the  party  or  his  attor- 
ney proposing  to  take  such  deposition  to  the  opposite  party  or 
his  attorney  of  record,  which  notice  shall  state  the  name  of 
the  witness  and  the  time  and  place  of  the  taking  of  his  depo- 
sition, and  a  copy  of  such  notice  shall  be  filed  with  the  secre- 
tary. 

When  testimony  is  to  be  taken  on  behalf  of  a  common  car- 
rier in  any  proceeding  instituted  by  the  Commission  on  its 
own  motion,  reasonable  notice  thereof  in  writing  must  be 
given  by  such  carrier  to  the  Commission  itself,  or  to  such  per- 
son as  may  have  been  previously  designated  by  the  Commis- 
sion to  be  served  with  such  notice. 

Every  person  whose  deposition  is  taken  shall  be  cautioned 
and  sworn  (or  may  affirm,  if  he  so  request)  to  testify  the 
whole  truth,  and  shall  be  carefully  examined.  His  testimony 
shall  be  reduced  to  writing,  which  ma}'  be  typewriting,  by 
the  magistrate  taking  the  deposition,  or  under  his  direction, 
and  shall,  after  it  has  been  reduced  to  writing,  be  subscribed 
by  the  witness. 


XIII.]  EULES    OF   PRACTICE.  407 

If  a  witness  whose  testimony  may  be  desired  to  be  taken  by 
deposition  be  in  a  foreign  country,  the  deposition  may  be  taken 
before  an  officer  or  person  designated  by  the  Commission,  or 
agreed  upon  by  the  parties  by  stipulation  in  writing  to  be  filed 
with  the  secretary.  All  depositions  must  be  promptly  filed 
with  the  secretary. 

XIII. 

WITNESSES    AND    SUBPCENAS. 

Subpoenas  requiring  the  attendance  of  witnesses  from  any 
place  in  the  United  States  to  any  designated  place  of  hearing, 
for  the  purpose  of  taking  the  testimony  of  such  witnesses 
orally  before  one  or  more  members  of  the  Commission,  or  by 
deposition  before  a  magistrate  authorized  to  take  the  same, 
will,  upon  the  application  of  either  party,  or  upon  the  order 
of  the  Commission  directing  the  taking  of  such  testimony,  be 
issued  by  any  member  of  the  Commission. 

Subpoenas  for  the  production  of  books,  papers  or  documents 
(unless  directed  to  issue  by  the  Commission  upon  its  own  mo- 
tion) will  only  be  issued  upon  application  in  writing;  and  when 
it  is  sought  to  compel  witnesses,  not  parties  to  the  proceeding, 
to  produce  such  documentary  evidence,  the  application  must 
be  sworn  to  and  must  specify,  as  nearly  as  may  be,  the  books, 
papers,  or  documents  desired ;  that  the  same  are  in  the  posses- 
sion of  the  witness  or  under  his  control;  and  also,  by  facts 
stated,  show  that  they  contain  material  evidence  necessary  to 
to  the  applicant.  Applications  to  compel  a  party  to  the  pro- 
ceeding to  produce  books,  papers,  or  documents  need  only  set 
forth  in  a  general  way  the  books,  papers,  or  documents  desired 
to  be  produced,  and  that  the  applicant  believes  they  will  be  of 
service  in  the  determination  of  the  case. 

Witnesses  whose  testimony  is  taken  orally  or  by  deposition, 
and  the  magistrate  or  other  officer  taking  such  depositions,  are 
severally  entitled  to  the  same  fees  as  are  paid  for  like  services 
in  the  courts  of  the  United  States,  such  fees  to  be  paid  by  the 
party  at  whose  instance  the  testimony  is  taken.* 

*Fees  of  witnesses  are  fixed  by  law  at  $1.50  for  each  day's  attendance 
at  the  place  of  hearing  or  of  taking  depositions,  and  5  cents  per  mile  for 
going  to  said  place  from  his  place  of  residence  and  5  cents  per  mile  for  re- 
turning therefrom. 


408  RULES    OF    PRACTICE.  L^iV,  XV. 

XIV. 

PROPOSED    FINDINGS    AND    BRIEFS. 

Proposed  findings  embracing  the  material  facts  claimed  to 
be  established  by  the  evidence,  and  referring  to  the  particular 
part  of  the  record  relied  upon  to  support  each  finding  pro- 
posed, shad  be  filed  by  each  party.  Printed  or  written  argu- 
ments or  briefs  may  be  filed  by  any  party.  A  copy  of  the 
proposed  findings,  brief,  or  argument  filed  on  behalf  of  any 
party,  must  at  the  same  time  be  served  upon  the  adverse  party 
or  parties,  personally  or  by  mail,  and  notice  of  such  service 
thereupon  filed  with  the  Secretary  of  the  Commission.  The 
time  within  which  proposed  findings  and  printed  or  written 
arguments  or  briefs  shall  be  filed  in  any  case  will  be  deter- 
mined by  the  Commission  upon  submission  of  the  testi- 
mony. 

XV. 

REHEARINGS. 

Applications  for  reopening  a  case  after  final  submission,  or 
for  rehearing  after  decision  made  by  the  Commission,  must  be 
by  petition,  and  must  state  specifically  the  grounds  upon  which 
the  application  is  based.  If  such  application  be  to  reopen  the 
case  for  further  evidence,  the  nature  and  purpose  of  such  ev- 
idence must  be  briefly  stated,  and  the  same  must  not  be  merely 
cumulative.  If  the  application  be  for  a  rehearing,  the  petition 
must  specify  the  findings  of  the  fact  and  conclusions  of  law 
claimed  to  be  erroneous,  with  a  brief  statement  of  the  grounds 
of  error:  and  when  any  recommendation,  decision,  or  order  of 
the  Commission  is  sought  to  be  reversed,  changed,  or  modified 
on  account  of  facts  and  circumstances  arising  subsequent  to 
the  hearing,  or  of  consequences  resulting  from  compliance  with 
such  recommendation,  decision,  or  order  which  are  claimed  to 
justify  a  reconsideration  of  the  case,  the  matters  relied  upon 
by  the  applicant  must  be  fully  set  forth.  Such  petition  must 
be  duly  verified,  and  a  copy  thereof,  with  notice  of  the  time 
and  place  when  the  application  will  be  made,  must  be  served 
upon  the  adverse  party  at  least  ten  days  before  the  time  named 
in  such  notice.' 


XVI-XIX.]  RULES    OF    PKACTICE.  409 

XVI. 

PRINTING    OF    PLEADINGS,    ETC. 

Pleadings,  depositions,  briefs,  and  other  papers  of  impor- 
tance, shall  be  printed  or  in  typewriting,  and  when  not  printed 
only  one  side  of  the  paper  shall  be  used. 

XVII. 

COPIES    OF    PAPERS    OR   TESTIMONY. 

Copies  of  any  petition,  complaint,  or  answer  in  any  matter 
or  proceeding  before  the  Commission,  or  of  any  order,  decision, 
or  opinion  by  the  Commission,  will  be  furnished  without 
charge,  upon  application  to  the  secretary  by  any  person  or 
carrier  party  to  the  proceeding. 

One  copy  of  the  testimony  will  be  furnished  by  the  Com- 
mission for  the  use  of  the  complainant,  and  one  copy  for  the 
use  of  the  defendant,  without  charge;  and  when  two  or  more 
complainants  or  defendants  have  appeared  at  the  hearing,  such 
complainants  or  defendants  must  designate  to  whom  the  copy 
for  their  use  shall  be  delivered. 

XVIII. 

COMPLIANCE    WITH    ORDERS    AGAINST    CARRIERS. 

Upon  the  issuance  of  an  order  against  any  carrier  or  carriers, 
after  hearing,  investigation,  and  report  by  the  Commission, 
such  carrier  or  carriers  must  promptly,  upon  compliance  with 
its  requirements,  notify  the  secretary  that  action  has  been 
taken  in  conformity  with  the  order;  and  when  a  change  in 
rates  is  required,  such  notice  must  be  given  in  addition  to  the 
filing  of  a  schedule  or  tariff  showing  such  change  in  rates. 

XIX. 

APPLICATIONS    BY    CARRIERS    UNDER  PROVISO    CLAUSE    OF   FOURTH 

SECTION. 

Any  common  carrier  may  apply  to  the  Commission,  under 
the  proviso  clause  of  the  fourth  section,  for  authority  to  charge 
for  the  transportation  of  like  kind  of  property  less  for  a  longer 
than  for  a  shorter  distance  over  the  same  line,  in  the  same 
direction,  the  shorter  being  included  within  the  longer  dis- 
tance.    Such  application  shall  be  by  verified  petition,  which 


410  RILES    OF    TRACTICE.  [XX,   XXL 

shall  specify  the  places  and  traffic  involved,  the  rates  charged 
on  such  traffic  for  the  shorter  and  longer  distances,  the  car- 
riers other  than  the  petitioner  which  may  be  interested  in  the 
traffic,  the  character  of  the  hardship  claimed  to  exist,  and  the 
extent  of  the  relief  sought  by  the  petitioner.  Upon  the  filing 
of  such  a  petition,  the  Commission  will  take  such  action  as  the 
circumstances  of  the  case  seem  to  require. 

XX. 

INFORMATION    TO    PARTIES. 

The  Secretary  of  the  Commission  will,  upon  request,  advise 
any  party  as  to  the  form  of  petition,  answer,  or  other  paper 
necessary  to  be  filed  in  any  case,  and  furnish  such  information 
from  the  files  of  the  Commission  as  will  conduce  to  a  full  pre- 
sentation of  facts  material  to  the  controversy. 

XXL 

ADDRESS    OF    THE    COMMISSION. 

All  complaints  concerning  anything  done  or  omitted  to  be 
done  b}r  any  common  carrier,  and  all  petitions  or  answers  in 
any  proceeding,  or  applications  in  relation  thereto,  and  all  let- 
ters and  telegrams  for  the  Commission,  must  be  addressed  to 
Washington,  D.  C,  unless  otherwise  specially  directed. 


FORMS  OF  PROCEDURE  BEFORE  COMMISSION. 


These  forms  may  be  used  in  cases  to  which  they  are  applicable,  with  such 
alterations  as  the  circumstances  may  render  necessary. 

No.  1. 
Complaint  Against  a  Single  Carrier. 

INTERSTATE   COMMERCE    COMMISSION. 

A.B.  ) 

against  > 

The Railroad  Company.  ) 

The  petition  of  the  above-named  complainant  respectfully 
shows: 

I.  That  [  here  let  complainant  state  his  occupation  and  place 
of  business.'] 

II.  That  the  defendant  above  named  is  a  common  carrier 
engaged  in  the  transportation  of  passengers  and  property  by 

railroad  between  points  in  the  State  of and   points   in 

the  State  of ,  and  as  such  common  carrier  is  subject  to 

the  provisions  of  the  Act  to  regulate  commerce,  approved  Feb- 
ruary 4,  1SS7,  and  Acts  amendatory  thereof  or  supplementary 
thereto. 

III.  That  [  here  state  concisely  the  matters  intended  to  be  com- 
plained of.  Continue  numbering  each  succeeding  paragraph 
as  in  JSfos.  /,  II,  and  111.'] 

"Wherefore  the  petitioner  prays  that  the  defendant  may  be 
required  to  answer  the  charges  herein,  and  that  after  due 
hearing  and  investigation  an  order  be  made  commanding  the 
defendant  to  cease  and  desist  from  said  violations  of  the  Act 
to  regulate  commerce,  and  for  such  other  and  further  order 
as  the  Commission  may  deem  necessary  in  the  premises. 
[The  prayer  may  be  varied  so  as  to  ask  also  for  the  ascertain- 
ment of  lawful  rates  or  practices  and  an  order  requiring  the 


•A  12  FORMS 

carrier  to  conform  thereto.  If  reparation  for  any  wrong  or  in- 
jury be  desired^  the  petitioner  should  state  the  nature  and  extent 
of  the  reparation  he  deems  proper.'] 

Dated  at , ,  190-. 

A.  B. 

{Complainant's  signature.) 


No.  2. 
Complaint  against  two  or  more  Carriers. 

INTERSTATE    COMMERCE    COMMISSION. 

A.  B. 

against 
The Railroad  Company, 

AND 

The Railroad  Company. 

The  petition  of  the  above-named  complainant  respectfully 
shows: 

I.  That  [here  let  complainant  state  his  occupation  and  place 
of  business.'] 

II.  That  the  defendants  above  named  are  common  carriers 
engaged  in  the  transportation  of  passengers  and  property,  by 
continuous  carriage  or  shipment,  wholly  by  railroad  [or partly 
by  railroad  and  partly  by  water,  as  tJie  case  may  be  ],  between 

points  in  the    State   of and  points  in  the  State  of 

and  as  such  common  carriers  are  subject  to  the  provisions  of 
the  Act  to  regulate  commerce,  approved  February  4,  1887, 
and  Acts  amendatory  thereof  or  supplementary  thereto. 

[  Then  proceed  as  in  Form  i.] 


No.  3. 
Answer. 
INTEE8TATB    COMMERCE   COMMISSION. 
A.   B.  ) 

against  \ 

The Railroad  Company.  ) 

The  above-named  defendant,  for  answer  to  the  complaint 
in  this  proceeding,  respectfully  states — 

I.  That  [here  follow  the  usual  admissions,  denials,  and  aver- 
ments.    Continue  numbering  each  succeeding  paragraph]. 


FOKMS.  413 

Wherefore  the  defendant  prays  that  the  complaint  in  this 

proceeding  be  dismissed. 

The Kailroad  Company. 

By  E.  F. 

{Title  of  officer.) 


No.  4. 
Notice  by  Carrier  under  Rule  V. 

INTERSTATE    COMMERCE    COMMISSION. 

A.  B.  ) 

against  > 

The Railroad  Company.  ) 

Notice  is  hereby  given  under  Rule  V  of  the  Rules  of  Prac- 
tice in  proceedings  before  the  Commission  that  a  hearing  is 
desired  in  this  proceeding  upon  the  facts   as   stated   in  the 

complaint. 

The Railroad  Company. 

By  E.  F, 

{Title  of  officer?) 


No.  5. 

Subpoena. 

interstate  commerce  oommission. 


To 


You  are  hereby  required  to  appear  before in  the 

matter  of  a  complaint  of against ,  as  a  wit- 
ness on  the  part  of ,  on  the day  of ,  190—, 

at o'clock — .m.  at ,  and  bring   with   you   then   and 


there 


Dated 


(Seal.) 


Commissioner. 


Attorney  for . 

(Notice. —  Witness  fees  for  attendance  undei'this  subpoena  are  to  be  paid 
by  the  party  at  whose  instance  the  witness  is  summoned,  and  every  copy 
of  this  summons  for  the  witness  must  contain  a  copy  of  this  notice.) 


4:14:  FORMS. 

No.  6. 
Notice  of  taking  Depositions  under  Rule  XII. 

INTERSTATE    COMMERCE    COMMISSION. 
A.  B.  ) 

against  V 

Tiie  Railroad    Company.  ) 

You  are  hereby  notified  that  G.  H.  will  be  examined  before 

C.  D.,  a [title  of  officer  or  magistrates],  at on   the 

day  of ,  190 — ,  at o'clock  in  the noon,  as  a 

witness  for  the  above  named  complainant  [or  defendant  as  the 
case  may  be],  according  to  act  of  Congress  in  such  case  made 
and  provided,  and  the  rules  of  practice  of  the  Interstate  Com- 
merce Commission;  at  which  time  and  place  you  are  notified 
to  be  present  and  take  part  in  the  examination  of  the  said 
witness. 

Dated ,  190—. 

J    I. 
{Signature  of  complainant  or 
defendant,  or  of  counsel) 

To  A.  B.,  the  above  named  complainant  [or  The Bail- 
road  Company,  the  ahove-named  defendant',  or  to  K.  L.,  coun- 
sel for  the  ahove-named  complainant  or  defendant]. 


TABLE  OF  CASES. 


References  are  to  pages. 


Adams  v.  Ohio  (165  U.  S.  194,  41  L. 

Ed.  683),  29. 
Adams  v.  Scott  (104  Mass.  164),  46. 
Adams    Express    Co.    v.    Kentucky 

(166  U.  S.  171,  41  L.  Ed.  960),  29. 
Aikens    v.    Wisconsin    (25   Sup.   Ct. 

Rep.  3),  140. 
Addyston     Pipe     &     Steel     Co.     v. 

United  States    (175  U.  S.  211,  44 

L.  Ed.  136,  29  C.  C.  A.  141,  85  Fed. 

Rep.  271),  91,  92,  93,  95,  100,  115, 

351,  366. 
Allen   v.    Flood    (67   L.   J.   Rep.   H. 

of  L.  — ),  98,  114. 
Allen  v.  -Oregon  Ry.  &  Nav.  Co.  (98 

Fed.  Rep.  616),  253. 
Allis-Chalmers      Co.      v.      Reliable 

Lodge  (111  Fed.  Rep.  264),  106. 
Almy  v.  California  (24  How.  169, 16 

L.  Ed.  644),  13. 
American  Refrigerator  Transit  Co. 

v.  Hall    (174  U.   S.  70,  43  L.  Ed. 

899),  29. 
American  Steamship  Co.  v.  Louisi- 
ana (118  U.  S.  455,  30  L.  Ed.  237), 

6,  33,  41. 
American     Steel     &    Wire     Co.     v. 

Speed    (192  U.  S.   500,  48  L.  Ed. 

538),  25. 
American  Steel  &  Wire  Co.  v.  Wire 

Drawers,  etc.  (90  Fed.  Rep.  608), 

106. 
Ames  v.  Union  Pac.  R.  Co.  (64  Fed. 

Rep.  165),  129. 
Anderson  v.  United  States   (171  U. 

S.  604,  43  L.  Ed.  300,  82  Fed.  Rep. 

529),  92,  355. 
Arbuckel  v.  Blackburn  (51  C.  C.  A. 

122,  113  Fed.  Rep.  616,  65  L.  R.  A. 

864),  17. 
Arnold  v.  Yanders   (Ohio,  47  N.  E. 

Rep.  50),  47. 
Arthur  v.  Oakes  (11  C.  C.  A.  209,  63 

Fed.  Rep.  310),  106,  117,  118,  297, 

298 
Asher  v.  Texas  (128  U.  S.  129,  32 

L.  Ed.  368),  28. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Den- 
ver &  N.  O.  R.  Co.  (110  U.  S.  667, 

28  L.  Ed.  281),  139,  253. 


Atchison,  T.  &  S.  F.  R.  Co.  v.  Mat- 
thews   (174    U.    S.    96,    43    L.    Ed. 

909),  142. 
Atlanta  v.  Chattanooga  Foundry  & 

Pipe  Co.   (127  Fed.  Rep.  25),  368. 
Atlantic    Coast    Line    Co.    v.    Com- 
monwealth   (46   S.  E.   Rep.   910), 

48. 
Atlantic,   etc.  Tel.   Co.  v.  Philadel- 
phia   (190    U.    S.    160,    47    L.    Ed. 

995),  29. 
Atwater  v.  Railroad  Co.    (48  N.  J. 

Law,  65),  189. 
Augusta  Southern  R.  Co.  v.  Wrights- 

ville  &   S.  R.   Co.    (74   Fed.  Rep. 

522),  167,  257. 
Austin  v.  Tennessee  (179  U.  S.  343, 

45  L.  Ed.   224),   17,   26. 
Avinger  v.   South  Car.  R.   Co.    (29 

S.  C.  265),  189. 
Baldwin  v.  Great  Northern  R.   Co. 

(81  Minn.  247),  46. 
Ball,      The    Daniel    (10    Wall.    557, 

19  L.  Ed.  999),  21. 
Bannon  v.  United  States  (156  U.  S. 

464,  39  L.  Ed.  494),  111. 
Baxendale  v.  Railway  Co.   (4  C.  B. 

N.  S.,  63),  185. 
Beavers  v.  Henkel  (194  U.  S.  73,  48 

L.  Ed.  882),  300. 
Beers  v.   Wabash,   St.   Louis  &  Pa- 
cific R.  Co.    (34   Fed.   Rep.   244), 

297. 
Behlmer  V.  Louisville  &  Nashville 

Railroad    Company     (175     U.     S. 

648,  44  L.  Ed.  309),  149,  171,  262, 

320. 
Bement    v.    National    Harrow    Co. 

(186   U.    S.   70,   46   L.   Ed.    1058), 

370,  371. 
Benedict  v.  Construction  Co.  (49  N. 

J.  Eq.  429),   19. 
Berkowitz  v.  United   States    (C.  C. 

A.,  93  Fed.  Rep.  452),  111. 
Bessette  v.  Conkey  Co.    (194  U.  S. 

324),  123,  126. 
Bigbee  Packet  Co.  v.  M.  &  O.  R.  Co. 

(60  Fed.  Rep.  545), 243. 
Bishop  v.  American  Preservers  Co. 
(105  Fed.  Rep.  845),  368. 


410 


TABLE    OF    CASES. 


References  are  to  pages. 


Boehring  v.   Chesapeake   Beach   R. 

Co.  (193  U.  S.  442,  48  L.  Ed.  742), 

206. 
Bogardus  v.  Insurance  Co.   (101  N. 

Y.  329),  24. 
Booth  v.  Davis  (127  Fed.  Rep.  875), 

357. 
Bonsack  Machine  Co.  v.  Smith   (70 

Fed.  Rep.  384),  371. 
Block    v.    Standard    Dist.    Co.     (9o 

Fed.   Rep.    47S),   363. 
Bowman  v.  Railway  Co.   (125  U.  S. 

405,    31    L.    Ed.    700),    25,    45,    50, 

51. 

Bover  v.  Western  Union  Telegraph 

Company     (124    Fed.    Rep.    246), 

113. 
Brass  v.  North  Dakota    (153  U.   S. 

38  L.  Ed.  757),  53. 
Brennan    v.    Titusville    (153    U.    S. 

289,  38  L.  Ed.  719),  28. 
Brewer  v.  Central  R.  Co.  of  Georgia 

(84  Fed.  Rep.  257).  216. 
Briggs  v.  C,  N.  &  W.  R.  Co.   (125 

Fed.  Rep.  745),  382. 
Brisgs   v.   Railway   Co.    (109   N.   C. 

279),  382. 
Brimmer  v.  Rebman   (138  U.  S.  78, 

34  L.  Ed.  862),  40. 
Brimson    v.     Interstate     Commerce 

Commission    (154    U.    S.    447,    38 

L.   Ed.    1047,    54   Fed.    Rep.   476), 

74,  310. 
Brown  v.  Houston    (114  U.   S.  622, 

29  L.  Ed.  257),  25. 
Brown   v.    Maryland    (12    Wheaton, 

419,  6  L.  Ed.  678),  25,  26,  28,  76. 
Brown  v.  Spillman    (155  U.  S.  665, 

39  L.  Ed.  304),  19. 
Brown  v.  Walker  (161  U.  S.  591,  40 

L.  Ed.   819),   307. 
Budd  v.  New  York   (143  U.  S.  517, 

36  L.  Ed.  247),  53. 
Burdick   v.    Illinois    (149    111.    600), 

Burlington  C.  R.  &  N.  R.  Co.  v.  Dey 

(82   Iowa,  312),  65,  160. 
Burlington   C.    R.    &   N.    R.    Co.   v. 

Northwestern  Fuel  Co.    (31  Fed. 

Rep.  652),   L86. 
Burrell  v.  Montana   (194  U.  S.  572, 

48  L.  Ed.  1122),  309. 
Butchers'  &  Drovers'  Stockyards  v. 

L.  &  N.  R.  Co.  (14  C.  C.  A.  290,  31 

U.  S.  App.  252,  67  Fed.  Rep.  35), 

]:,:,.   209,   239,   244,   258. 
Butfield    v.    Stranahan    (192    U.    S. 

170,  48  L.  Ed.  525),  72. 
CaldwHl     v.    North    Carolina     (187 

U.  S.  622,  47  L.  Ed.  326),  28. 


California  v.  Pacific  R.  Co.   (127  U. 

S.  1,  32  L.  Ed.  150),  66,  81. 
Callan    v.    Wilson    (127    U.    S.    540, 

32  L.  Ed.  223),  111. 
Canal    v.    Lockes    Co.      (6    Oregon, 

219),—. 
Capital  City  Dairy  Co.  v.  Ohio  (183 

U.  S.  238,  46  L.  Ed.  171),  16. 
Carew  v.  Rutherford  (106  Mass.  1), 

115. 
Cardwell    v.    American    Bridge    Co. 
(113  U.  S.  205,  28  L.  Ed.  959),  34. 
Case  of  Monopolies    (11  Coke  Rep. 

84b),  99,  101. 
Central  Stockyards  Co.  v.  L.  &  N. 
R.  Co.  (192  U.  S.  568,  48  L.  Ed. 
565  55  C.  C.  A.  63,  112  Fed.  Rep. 
823'  118  Fed.  Rep.  113),  155,  253. 
257,  258,  288. 
Casey   v.    Central   Typo   Union    (45 

Fed.  Rep.  135),  115. 
Central    Union    Tel.    Co.    v.    State 

(118  Ind.  194),  12. 
Central    of    Georgia    R.    R.    Co.    v. 
Murphy    (25   Sup.  Ct.   Rep.   218), 
44. 
Charge  to  Grand  Jury  (62  Fed.  Rep. 
824,    828,    834,    66    Fed.    Rep.    146, 
115  Fed.  Rep.  588),  107,  111,  119, 
206,  298,  358,  360. 
Charles  v.  Missouri  Pacific  Ry.  Co. 

168  Mo.  652)   58. 
Chattanooga  Rate  Case    (181  U.   S. 

1,  45  L.  Ed.  719),  241. 
Cherokee  Nation  v.  Georgia   (5  Pe- 
ters, 1,   8  L.  Ed.  25),  5. 
Chesapeake  &  O.  R.  Co.  v.  Kentucky 
(179  U.  S.  388,  45  L.  Ed.  244),  37. 
Chicago,  Burlington  &  Q.  R.  Co.  v. 
B.  C.  R.  &  N.  Co.    (34  Fed.  Rep. 
481),  297. 
C    C   C.  &  I.  R.  Co.  v.  Closser  (126 

Ind.  348,  9  L.  R.  A.  754),  186. 
C.   C.    &  A.   R.   Co.   v.   Gebbes    (142 

U.  S.  386,  35  L.  Ed.  1051),  130. 
Chicago   &  Grand  Trunk  R.  Co.   v. 
Wellman  (143  U.  S.  339,  36  L.  Ed. 
176),  134. 
Chicago,    etc.    R.    Co.    v.    Minnesota 
(134  U.   S.    418,   33   L.   Ed.   970), 
132,  134. 
Chicago,  etc.  R.  Co.  v.  Suffern  (129, 

111.   274),  189,  239. 
Chicago,   etc.  R.  Co.  v.   Solan    (169 
U.   S.  133,  42  L.  Ed.  688),  35,  39, 
43. 
Chicago,  etc.   R.  Co.  v.  Jones    (149 

111.    361),   65. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Becker 
(32  Fed.  Rep.  849),  150. 


TABLE    OF    CASES. 


417 


References  are  to  pages. 


Chicago,  M.  &  St.  P.  R.  Co.  v.  Becker 

(35  Fed.  Rep.  883),  131. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Tomp- 
kins   (176    U.    S.    167.    44    L.    Ed. 

417,  110  Fed.  Rep.  473),  132,  133, 

134,   190. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Voel- 

ker   (129  Fed.  Rep.  522,  116  Fed. 

Rep.   867),  381,  382. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Wal- 
lace   (66  Fed.  Rep.  506,   14  C.  C. 

A.  257,  30  L.  R.  A.  261),  195. 
Chicago  &  N.  W.  R.  Co.  v.  Dey   (35 

Fed.  Rep.   866),  129. 
Chinese  Exclusion  Acts    (130  U.   S. 

581.  32  L.  Ed.  1068,  149  U.  S.  698, 

37  L.  Ed.  905),  8. 
Cherokee  Nation  v.  Kansas  Ry.  Co. 

(135  U.  S.  641,  34  L.  Ed.  295),  5. 
Chy    Lung    v.    Freeman    (92    U.    S. 

275,  23  L.  Ed.  550),  15. 
Cincinnati     Freight     Bureau     Case 

167  U.  S.  479,  42  L.  Ed.  243),  162. 
Cincinnati,  N.  O.  &  T.  P.  vs.  Com- 
mission  (162  U.  S.  184,  40  L.  Ed. 

935),  147,  148,  329. 
Claflin  v.  Houseman   (93  U.  S.  130, 

23  L.  Ed.  833),  56. 
Cleveland,  C,  C.  &  St.  L.  R.  Co.  v. 

Backus   (154  U.  S.  439,  38  L.  Ed. 

1041),    29. 
Cleveland,  C,  C.  &  St.  L.  R.  Co.  v. 

Illinois   (177  U.  S.  514,  44  L.  Ed. 

868),    38. 
Clune  v.   United  States    (159  U.  S. 

590,  40  L.  Ed.  69),  111,  112. 
Coe  v.  Errol    (116  U.  S.  517,  29  L. 

Ed.  715),  26,  153. 
Coeur  d'  Alene  C.  Mfg.  Co.  v.  Min- 
ers'   Union    (51    Fed.    Rep.    260), 

106. 
Cohens    v.    Virginia     (6    Wheaton. 

264,  5  L.  Ed.  257),  87. 
Collins  v.  New  Hampshire   (147  U. 

S.  31,  43  L.  Ed.  60).  16. 
Columbia  Wire  Co.  v.  Freeman  Wire 

Co.   (71  Fed.  Rep.  302),  370. 
Commonwealth    v.    Carter    (96    Va. 

791),  124. 
Commonwealth  v.  Hunt  (4  Metcalf, 

111),  111. 
Commonwealth      v.      Railway      Co. 

(Ky.,  40  S.   W.  Rep.   520),   48. 
Commonwealth  v.  Wilson  (14  Phila. 

354),  48.  . 
Connery  v.   Q.   O.    &   K.    C.   R.   Co. 

91  Minn. ,  64  L.  R.  A.  625),  46. 

Connolly  v.  Union   Sewer  Pipe  Co. 
(184   U.    S.    540,   46   L.   Ed.   679), 
141,  370. 
27 


Consolidated  Steel  &  W.  Co.  v.  Mur- 
ray  (80  Fed.  Rep.  811),  106. 
Conway    v.    Taylor's    Executors     (1 

Black,  603,  17  L.  Ed.  191),  67. 
Connor  v.  V.  &  M.  R.  Co.   (36  Fed. 

Rep.  273),  287. 
Cook  v.  Railway  Co.   (81  Iowa,  551, 

9  L.  R.  A.  764),  160,  189,  286. 
Cook  v.  County  of  Marshall    (1905 

—Sup.  Ct.  Rep.  ),  25,  26,  143. 

Cooley    v.    Board    of    Wardens    (12 

Howard,  299,  13  L.  Ed.  996),  32, 

33. 
Copp  v.  L.  &  N.  R.  Co.  (50  Fed.  Rep. 

164),   58,   285. 
Cotting  v.  Kansas  City  Stockyards 

Co.  et  al.  (183  U.  S.  79,  46  L.  Ed. 

92),  143,  165. 
Council   Bluffs  v.  Railway  Co.    (45 

Iowa,  338),  47. 
Councilman  v.  Hitchcock  (142  U.  S. 

547,  35  L.  Ed.  1110,  44  Fed.  Rep. 

271),  305. 
County  of  Mobile  v.   Kimball    (102 

U.  S.  691,  26  L.  Ed.  238),  34. 
Covington,  etc.   Bridge  Co.  v.  Ken- 
tucky   (154   U.   S.    204,   38   L.   Ed. 

962),  11,  33,  43,   66. 
Covington    &    Lexington    Turnpike 

Co.  v.  Sandford  (164  U.  S.  578,  41 

L.  Ed.  560),   132,  163. 
Covington  Stockyards  Co.  v.  Keith 

(139  U.  S.  128,  35  L.  Ed.  73),  155, 

258. 
Cowden  v.   Pacific   Coast   S.    S.   Co. 

(94    Cal.    470,    18    L.    R.    A.    221), 

185. 
Cowen  v.   Bond    (39  Fed  Rep.   59), 

203. 
Crawford  v.  Railroad  Co.    (10  Am.. 

Neg.  Repts.  166),  381. 
Crossman  v.  Lurman  (192  U.  S.  189,. 

48  L.  Ed.  401),  16. 
Crutcher  v.  Kentucky  (141  U.  S.  47,. 

35  L.  Ed.  649),  22,  86. 
Crump   v.    Commonwealth    (84    Va. 

927),    114. 
Crandall    v.    Nevada    (6    Wall.    35, 

18   L.   Ed.   745),   30. 
Davis   v.    United    States    (104    Fed. 

Rep.  136,  43  C.  C.  A.  448),  299. 
Decker    v.    Railroad    Co.     (30    Fed. 

Rep.  723),  81. 
Delaware,   The    (161   U.    S.   471,    40 

L.  Ed.  776),  39. 
Delaware  L.  &  W.  R.  Co.  v.  Frank 

et  al.   (110  Fed.  Rep.  689),  270. 
Denaby  Main  Colliery  Co.  v.  M.  S. 
&  L.  R.  Co.   (6  Ry.  &  Canal  Cas. 
141),  181. 


•±18 


TABLE    OF    CASES. 


References  are  to  pages. 


Denver    &    Rio    Grande    R.    Co.    v. 

Arrighi   (129  Fed.  Rep.  347),  391. 
Diamond  Glue  Co.  v.  United  States 

Glue  Co.  1 1";:  Fed.  Rep.  838),  L3. 
Dooley  v.  United  States   (1S3  U.  S. 

151,  46   L.   Ed.  128),  6. 
Doremus     v.     Hennesey     (176     II!. 

608),  115. 
Dow  v.  Bidelman  (125  U.  S.  t>S".  31 

L.  Ed.  841),   133. 
Dueber  Watch   &  Mfg.   Co.  v.  How- 
ard Watch  &  C.  Co.  (55  Fed.  Rep. 

51,   66   Fed.  Rep.  67),  357. 
Duncan    v.    Maine    Central    R.    Co. 

(113  Fed.   Rep.   508),  206. 
East   Tenn.  etc.  R.  Co.  v.  Commis- 
sion (LSI  U.  S.  1.  1.  c.  27,  45  L.  Ed. 

719,  729,  39  C.  C.  A.  413,  99  Fed. 

Rep.  52),  215,  262,  320. 
Easton  v.   Iowa    (188  U.   S.  220,  47 

L.  Ed.  452),  84. 
Edison  E.  L.  Co.  v.  Sawyer  M.  Elec. 

Co.   (3  C.  C.  A.  695,  53  Fed.  Rep. 

592),    371. 
Edmunds    v.    111.    Cent.    R.    Co.    (80 

Fed.  Rep.  78),  58.  286. 
Elder   v.    Whiteside    (72    Fed.   Rep. 

724),  106. 
Ellis  v.  Inman  (124  Fed.  Rep.  956), 

357. 
Equitable    Ass.     Soc.     v.    Clements 

(140  U.  S.  226,  35  L.  Ed.  497).  24. 
Erb  V.   Morasch    (177  U.   S.   584,  44 

L.  Ed.  897),  36,  151. 
Erie   R.   Co.   v.    Pennsylvania    (158 

U.  S.  431,  39  L.  Ed.  1043),  28. 
Escanaba  Co.  v.  Chicago  (107  U.  S. 

678,  27  L.  Ed.  442),  21,  34. 
Evershed  v.  London  &  N.  W.  R.  Co. 

H,  R.  3  Q.  B.  D.  135),  188. 
Ex  parte  Benson  (18  S.  C.  38),  185. 
Ex    parte    Koehler    (31    Fed.    Rep. 

315),  341. 
Ex    parte   Lennon    (166    U.    S.    548, 

41  L.  Ed.  1110),  124. 
Ex  parte  Robinson  (19  Wallace,  505, 

22  L.  Ed.  205),  124. 
Express  Company  Cases   (117  U.  S. 

1.   29   L.   Ed.   791  t,    lis. 
Express  Co.  v.  Railroad  Co.  (Ill  N. 

C.  463),  65. 
Fairbanks  v.  United  States  (181  U. 

S.  283,    15  L,  Ed.  862),  13. 
Fanning    v.    (Iregorie    (16    Howard, 

524,   14  L.   Ed.    1043),   67. 
Fargo   v.    Hart    (193   U.    S.   490,   48 

L.  Ed.  761),  29. 
Faris  v.   Henderson    (4  Okla.   384), 

47. 


Farmers'     Loan     &     Trust     Co.     v. 

Northern    Pac.    R.    Co.    (83    Fed. 

Rep.   249),  163. 
Farmers',     etc.    National     Bank    v. 

Deering    (91  U.   S.   29,   23  L.  Ed. 

196),  81. 
Field    v.    Barber    Asphalt    Co.    (194 

U.  S.   618,   48  L.   Ed.    1142),   356. 
Field  v.   Clark    (143   U.    S.   649,   36 

L.  Ed.  294),  72. 
Fitch  v.  Livingston  (6  N.  Y.  Super. 

Ct.  492),  48. 
Fitchburg  R.  Co.  v.  Gage  (12  Gray, 

393),  189. 
Foote  v.  Buchanan    (113  Fed.  Rep. 

156),    371. 
Foster  v.  C.  C.  &  I.  R.  Co.   (56  Fed. 

Rep.   434),   231. 
Fowle  v.  Park  (131  U.  S.  88,  97,  33 

L.  Ed.  74),  100. 
Fretz  v.  Bull    (12  Howard,  466,  13 

L.  Ed.  1068),  21. 
Gardner    v.    Early    (69    Iowa,    40), 

308. 
Garrison   v.    Tillinghast      (18     Cal. 

4  04).   47. 
Geer  v.  Connecticut   (161  U.  S.  519, 

40  L.  Ed.  793),  18. 
General   Electric  Co.   v.   Wise    (119 

Fed.  Rep.  922),  370. 
Genesee    Chief,    The     (12    Howard, 

443,  13  L.  Ed.  1058),  21. 
Georgia,   etc.   R.   Co.    v.    Smith    (70 

Ga.    694),   65. 
Gerber  v.   Wabash  R.   Co.    (63   Mo. 

App.   145),  276. 
Gibbes  v.  Consolidated  Gas  Co.  (130 

U.  S.  397,  32  L.  Ed.  979),  100. 
Gibbes  v.  McNeeley  (55  C.  C.  A.  70, 

118  Fed.  Rep.  120,  107  Fed.  Rep. 

210,   102   Fed.  Rep.   594),   96,   354, 

369. 
Gibbons   v.    Ogden    (9    Wheaton,    1, 

6  L.  Ed.  23),  9. 
Gilbert  v.  Burlington,  C.  R.  &  N.  R. 

Co.    (128  Fed.  Rep.  529,  123  Fed. 

Rep.  832),  390. 
Gilman    v.    Philadelphia     (3    Wall. 

72  1,    18   L.   Ed.   99),    12. 
Gladson    v.    Minnesota    (166    U.    S. 

427,  41  L.  Ed.  1064),  38. 
Gloucester     Ferry    Co.    v.    Pennsyl- 
vania   (114   U.    S.   196,   29   L.   Ed. 

158),  34,  66. 
Grand  Rapids  &   Ind.  R.   Co.  v.  Os- 
borne   (193    U.    S.    17,    48    L.    Ed. 

598),  140. 
Granger  Cases   (94  U.  S.  113,  24  L. 

Ed.   77),   159. 


TABLE    OF    CASES. 


419 


References  are  to  pages. 


Great  Western  R.  Co.  v.  Sutton  (L. 

R.  4  H.  L.  226,  238),  185,  189,  197. 
Green  v.  Henkel    (183  U.  S.  249,  46 

L.  Ed.  177),  300. 
Green  v.  Statler   (77  Fed.  Rep.  1). 
Greenlee  v.  Southern  Ry.  Co.    (122 

S.  C.  982,  41  L.  R.  A.  99),  380. 
Groves  v.  Slaughter  (15  Peters,  449, 

505,  10  L.  Ed.  800,  821),  6. 
Gulf.  Colo.  &  S.  P.  R.  Co.  v.  Heffley 

(158  U.  S.  98,  39  L.  Ed.  910),  36 

214. 
Gulf,  Colo.  &  S.  F.  R.  Co.  v.  Miami 

S.  S.  Co.  (30  C.  C.  A.  142,  86  Fed. 

Rep.  407),  90,  254,  363. 
Gulf.  Colo.  &  S.  F.  R.  Co.  v.  Moore 

(Tex.— 83  S.  W.  Rep.  362),  58. 
Hague  v.  Wheeler  (157  Pa.  St.  324), 

19. 
Hall  v.  Decuer  (95  U.  S.  485,  24  L. 

Ed.  547),  37,  76. 
Hall  v.  Railroad  Co.  (25  S.  C.  264), 

48. 
Handy  v.  C.  &  N.  R.  Co.    (31  Fed. 

Rep.    689),  186. 
Hanley   v.    Kansas    Citv    S.    R.    Co. 

187  U.  S.  617,  47  L.  Ed.  333),  12, 

150. 
Harman  v.  Chicago    (147  U.  S.  396, 

37  L.  Ed.   216),   34. 
Harp  v.  Choctaw  O.  &  G.  R.  R.  Co. 

(61  C.   C.   A.   405,  125   Fed.  Rep. 

445,  118  Fed.  Rep.  109),  232,  239. 
Hayes  v.  Pennsylvania  Co.  (12  Fed. 

Rep.   309),   1S7. 
Head  Money  Cases    (112  U.  S.  580, 

28  L.  Ed.  798),  80. 
Helms    v.    Mortgage    Co.     (92    Ala. 

157),  13. 
Henderson  Bridge  Co.  v.  Kentucky 

(166   U.   S.   150,   41   L.   Ed.    953), 

12,  29. 
Henderson    Bridge    Co.    v.    Hender- 
son (173  U.  S.  592,  43  L.  Ed.  823), 

12. 
Henderson  v.  Mayor   (92  U.  S.  1.  c. 

273,  23  L.  Ed.   556),   32. 
Henderson  v.  New  York    (92  U.  S. 

259,  23  L.  Ed.  543),  15. 
Hennington   v.   Georgia    (163  U.   S. 

299,  41  L.  Ed.  166),  36,  52. 
Higgins    v.    Casks    of    Lime     (130 

Mass.  1),  47. 
Hilton  Lumber  Co.  v.  Railroad  Co. 

(N.  C— 60  C.  L.  J.   301),  188. 
Hitchcock    v.    Counselman    (142   U. 

S.  457,  35  L.  Ed.  1110),  292. 
Hagan  v.   Blendell    (6  C.  C.  A.   86, 

56    Fed.    Rep.    696,    54    Fed.    Rep. 

40),  363. 


Hooper    v.    California     (155    U.    S. 

647,  39  L.  Ed.  297),  14. 
Hoover    v.    Pennsylvania    (156    Pa. 

St.  220,  23  L.  R.  A.  23),  187. 
Hopkins  v.  Oxley  Stave  Co.    (28  C. 

C.    A.   99,   83   Fed.   Rep.   99),   106, 

114. 
Hopkins   v.   United   States    (171    U. 

S.    578,   1.    c.    593,    43   L.   Ed.   290, 

296),  92,  108,   298,  355. 
Houston  &  Texas  C.  R.  Co.  v.  Mayes 

(83  S.  W.  Rep.  53),  48. 
Hovey  v.  McDonald   (109  U.  S.  161, 

27  L.  Ed.  891),  332. 
Huse  v.  Glover    (119   U.   S.  543,  30 

L.  Ed.  487),  34. 
Illinois  Cen.  R.  Co.  v.  Illinois   (163 

U.  S.  142,  41  L.  Ed.  107),  38. 
Ilwaco  v.  Or.  Ry.  &  Nav.  Co.    (6  C. 

C.  A.  495,  57  Fed.  Rep.  673),  254. 
Import  Rate  Case    (162   U.   S.   197, 

40  L.  Ed.  940,  6  C.  C.  A.  653,  52 

Fed.  Rep.  187),  60,  151,  212,  262. 
Import  Tax  Cases    (158   U.   S.   601, 

39  L.  Ed.  1108),  190. 
Income  Tax  Cases    (158  U.   S.   601, 

39  L.  Ed.  108),  80. 
Independent  Refiners'  Ass'n  v.  Rail- 
road Co.    (82  Fed.  Rep.  84,  192), 

221. 
Indiana  Consumers'  &  T.  R.  Co.  v. 

Horlass    (131   Ind.  446),  19. 
Ingraham  v.  National  Salt  Co.  (130 

Fed.  Rep.  676,  120  Fed.  Rep.  40), 

370. 
In  re  Bessette  (111  Fed.  Rep.  417), 

112,  126. 
In    re    Davenport    (102    Fed.    Rep. 

540),   18. 
In  re  Corning   (51  Fed.  Rep.  205), 

356,  359. 
In  re  Christensen  Engineering  Co. 

(194  U.  S.  458,   48   L.  Ed.   1072), 

126. 
In  re  Debs  (158  U.  S.  564,  39  L.  Ed. 

1092,  64  Fed.  Rep.  724),  4,  8,  90, 

107,   111,    112,   120,   122,   124,    128, 

290,  357,  358. 
In    re    Deininger     (108    Fed.    Rep. 

623),   18. 
In  re  Doolittle   (23  Fed.  Rep.  544), 

124. 
In  re   Garnett    (141  U.   S.  1,  35  L. 

Ed.   631),  21,  22. 
In  re  Grice  (79  Fed.  Rep.  627),  141, 

142. 
In  re  Green  (52  Fed.  Rep.  104),  98, 

356,    359. 
In  re  Higgins    (27  Fed.  Rep.  443), 

124. 


41'0 


TABLE    OF    CASES. 


References  are  to  pages. 


In  re  Horhorst    (150  U.  S.  653,  37 

L.    Ed.   1211),   287. 
In  re  Jackson  (96  U.  S.  727),  78. 
In    re    Lennon    (166   U.    S.    548,    41 

L.  Ed.  1110),  57,  118,  122,  287,291. 
In   re  Nevitt    (55  C.  C.  A.  622,  117 

Fed.  Rep.  448),  126. 
In   re   Peasley    (44  Fed.  Rep.  271), 

In  re  Nagle  (135  U.  S.  1,  34  L.  Ed. 

55),   3. 
In  re  Penn  Tel.  Co.    (48  N.  J.  Eq. 

L9I  I,    12. 
In   re   Reese    (98  Fed.  Rep.  984,  47 
C.  C.  A.   87,  107  Fed.  Rep.  942), 
122,    L26. 
Insurance  Co.  v.  Statham   (93  U.  S. 

21),  24. 
In  re  Rahrer   (140  U.  S.  545,  35  L. 

Ed.  572),  27,  70. 
In  re  Rapier   (143  U.  S.  110,  36  L. 

Ed.   93),   79. 
In   re   Robinson    (19    Wallace,    505, 

22  L.  Ed.  205),  124. 
In  re   Savin    (131  U.   S.  267,  33  L. 

Ed.  150),  124. 
In   re   Tyrrell    (51   Fed.  Rep.   213), 

356 
In  re  Wiswall   (74  Fed.  Rep.  802), 

370. 
In  re  Wung  Yung  Quy   (6  Sawyer, 

112).    15. 
Interstate    Commerce     Commission 
v.  Alabama  Mid.  Ry.   Co.    (168 
U.   S.   144,   42   L.   Ed.   414), 
262,  263,  330. 
v.Atchison,   T.   &  S.   F.   R.   Co. 
(149   U.    S.   264,   37   L.   Ed. 
727),  331. 
V.Atlantic  R.  Co.    (35  C.  C.  A. 
217,  93  Fed.  Rep.  83),  216. 
v.  Baird  (194  U.  S.  25,  48  L.  Ed. 

860),  74,  311,  375. 
v.  Baltimore    &   O.    R.    Co.    (43 

Fed.  Rep.  47),  61. 
V.Baltimore  &  O.   R.   Co.    (145 
U.    S.   263,   1.   c.   276,   36   L. 
Ed,  699,  703).   L92. 
v.  Bellaire  C.  &  Z.  R.  Co.    (17 

Fed.  Rep.  942),  147. 
v.  Brimson    (154    U.    S.   447,    38 
L.    Ed.     I  "17,    155   U.    S.    1, 
39  L.  Ed.  49,  53  Fed.  Rep. 
476),  74. 
v.  B.   Z.   &   C.   R.   Co.    (77   Fed. 

Rep.  942),  337. 
v.  Chesapeake    v.    Ohio   R.    Co., 
(128    Fed.    Rep.     59),     201, 
202,  234. 


Interstate     Commerce    Commission 
V.Chicago,  B.  &  Q.  R.  Co.    (94 

Fed.  Rep.  272),  330. 
v.  Chicago,  B.  &  Q.  R.  Co.   (186 

U.   S.   320,   46   L.   Ed.   1182, 

43   C.   C.   A.    209,    103   Fed. 

Rep.  249),  155. 
v.  Cincinnati,   N.   O.   &  T.   P.  R. 

Co.    (167  U.   S.  479,  494,  42 

L.  Ed.   243,   251),  77. 
v.  Cincinnati    P.    &    V.    R.    Co. 

(124  Fed.  Rep.  624),  217. 
v.  Delaware,  L.  &  W.  R.  Co.  (64 

Fed.  Rep.  723),  171,  330. 
V.Detroit,    G.    H.    &  M.   R.   Co. 

(167   U.    S.    633,   42    L.   Ed. 

306,  21  C.  C.  A.  103,  74  Fed. 

Rep.  803),  154,  195. 
v.Lake  Shore  R.  Co.  et  al.  (un- 
reported    January,     1905), 

252. 
v.Lehigh    V.    R.    Co.    (49    Fed. 

Rep.  177),  331. 
v.Lehigh    V.    R.    Co.    (74    Fed. 

Rep.  784),  171. 
v.Louisville    &   N.    R.    Co.    (73 

Fed.  Rep.  409),  216. 
v.Louisville  &  N.   R.   Co.    (101 

Fed.  Rep.   146),  331. 
v.Louisville  &  N.   R.   Co.    (190 

U.   S.   273,   47   L.   Ed.   1047, 

112  Fed.  Rep.  98),  220,221, 

262. 
v.Louisville   &  N.   R.  Co.    (102 

Fed.  Rep.  709),  330. 
v.  Louisville  &  N.  R.  Co.  190  IT. 

S.  273.  47  L.  Ed.  1047,    (46 

C.  C.  A.  685,  108  Fed.  Rep. 

988),  217. 
v.Louisville   &  N.  R.   Co.    (118 

Fed.  Rep.  613),  170. 
v.N.    C.    &    St.   L.    R.    Co.    (120 

Fed.  Rep.   934),   170. 
v.  Seaboard    R.    Co.     (82    Fed. 

Rep.  563),  337. 
v.  Southern    Pac.    R.    Co.     (117 

Fed.  Rep.  741).  170,  220. 
v.  Southern     Pac.     R.    Co.     (74 

Fed.  Rep.  42),  328. 
v.  Southern    Pac.    R.    Co.     (123 

Fed.    Rep.     597,    132     Fed. 

Rep.    829),    241,     267,     328, 

329,  330. 
V.Texas  &  Pacific  R.  Co.    (167 

U.  S.  197,  40  L.  Ed,  52  Fed. 

Rep.    187,    6    C.    C.    940,    A. 

653),  186,  218. 
v.  Western  Atl.  R.  Co.  (88  Fed. 

Rep.  186),  217. 


TABLE    OF    CASES. 


421 


References  are  to  pages. 


Interstate  Commerce  Commission 
v.  W.  N.  Y.  &  P.  R.  Co.  (182  Fed. 
Rep.  192),  151,  329,  337,  338. 
Interstate  Stockyards  Co.  v.  Indian- 
apolis U.  R.  Co.  (99  Fed.  Rep. 
473),  240,  256,  258,  288. 
James  v.  Union  Pacific  R.  Co.    (62 

Fed.   Rep.    714),    298. 
Jamison  v.  Indiana  Gas  &  Fuel  Co. 
(128   Ind.   555,    12   L.  R.  A.   652), 
19. 
Jefferson,   The   Thomas    (10   Whea- 

ton,  428,  6  L.  Ed.  358),  20. 
Johnson  v.  Pensacola,  etc.  Co.    (16 

Fla.  623),  185. 
Johnson    v.    Southern    Pac.    R.    Co. 
(117   Fed.   Rep.   462,   54   C.   C.   A. 
508),  383,  384. 
Joint  Traffic  Association  Case    (171 
U.  S.  505,  43  L.  Ed.  259),  91,  92, 
94,   104,   351. 
Joy  v.  St.  Louis  (138  U.  S.  1,  34  L. 

Ed.  843),  127. 
Junod  v.  C.  &  W.  R.  Co.    (47  Fed. 

Rep.  290),  285,  293. 
Kellev  v.  Rhodes    (188  U.   S.  1,  47 

L.   Ed.   359),   26. 
Kentucky  Railroad  Tax  Cases    (115 

U.  S.  321,  29  L.  Ed.  414),  29. 
Kentucky  &  Indiana  Bridge  Co.  v. 
L.  &  N.  R.  Co.   (37  Fed.  Rep.  567, 
633),  51,  153,  253,  289,  319,  331. 
Kidd  v.  Pierson  (128  U.  S.  1,  32  L. 

Ed.  346),  13,  82. 
Kimmish  v.  Ball   (129  U.  S.  217,  32 

L.   Ed.   695),   40. 
Kinnavey   v.    Terminal   Association 
(81     Fed.     Rep.     802),     55,     161, 
209. 
Kinsey  v.  Buffalo,  N.  Y.  &  P.  R.  Co. 

(37  Fed.  Rep.   181),   1S7. 
Kirkpatrick  v.   Pope   Mfg.    Co.    (61 

Fed.  Rep.  46),  307. 
Knowlton  v.  Moore    (178  U.   S.   41, 

44  L.  Ed.  969),  80. 
Knox  v.   Harshman    (132  U.   S.   14, 

33  L.  Ed.  249),  332. 
Knudson    v.    Benn    (123    Fed.    Rep. 

636),    116,    117. 
Kohl  v.  United  States  (91  U.  S.  367, 

23  L.  Ed.  449),  8. 
La  Farier  v.  Railway  Co.     (84  Me. 

286),  47. 
Lake  Shore  &  M.  S.  R.  Co.  v.  Smith 
173  U.  S.  684,  43  L.  Ed.  858),  138, 
342. 
Landa  v.  Hoick    (129  Mo.  663).  46. 
L.  &  Y.  R.  Co.  v.  Greenwood   (Law 
Rep.  21  Q.  B.  Div.  217,  218),  181, 
213. 


Laurel  Cotton  Mills  v.  Gulf  etc.  R. 

Co.    (37    So.   Rep.   134),   204,   206, 

276. 
Legal  Tender  Cases    (110  U.   S.  42, 

28  L.  Ed.  64),  7,  8. 
Lehigh     Valley     Railroad     Co.     v. 

Dupont     (128     Fed.     Rep.     840), 

170. 
Lehigh  V.  R.   Co.   v.    Pennsylvania 

(145   U.    S.   192,   36    L.   Ed.    672), 

150. 
Lehigh   V.    R.    Co.    v.    Rainey    (112 

Fed.  Rep.  407),  285. 
Leisy  v.  Hardin   (135  U.  S.  100,  34 

L.  Ed.  128),  25,   32. 
Leloup  v.   Port   of  Mobile    (127   U. 

S.  640,  32  L.  Ed.  311),  4. 
Leonard    v.    Land    Co.     (115    U.    S. 

468,  29  L.  Ed.  445),  332. 
License  Cases    (5    Howard,   504,   12 

L.   Ed.   256),   25,   31,   32. 
Little  Rock  &  N.  R.  Co.  v.  E.  Tenn. 

etc.  R.  Co.   (47  Fed.  Rep.  771,  159 

U.    S.    698,    40   L.    Ed.    311),    288, 

331. 
Little  Rock  &  N.  R.  Co.  v.   St.  L., 

Iron    Mt.    &    S.    R.    Co.     (41    Fed. 

Rep.  559,  59  Fed.  Rep.  400),  253, 

254. 
Little  Rock  &  N.  R.  Co.  v.  St.  L.  & 

S.  W.  R.  Co.   (11  C.  C.  A.  416,  57 

Fed  Rep.  775),  254. 
Little  Rock  &  St.  L.  R.  Co.  v.  Op- 

penheimer  (64  Ark.  471,  44  L.  R. 

A.  353),  233. 
Livingston  v.  Van   Ingle    (9  Johns. 

507),    9. 
Logan  v.  Penn.  R.  Co.  (152  Pa.  403), 

308. 
Lombard    v.     West    Chicago    Park 

Comm'rs   (181  U.  S.  33,  45  L.  Ed. 

731),  171. 
Lottery  Cases  (188  U.  S.  321,  47  L. 

Ed.  492),  12. 
Louisville   &    Nashville    R.    R.    Co. 

v.    Brown     (123    Fed.    Rep.    946), 

171. 
Louisville    &    Nashville    R.    Co.    v. 

Behlmer  (169  U.  S.  644,  42  L.  Ed. 

889),  331,  332. 
Louisville    &    Nashville    R.    Co.    v. 

Commonwealth     (51    S.    W.    Rep. 

167),    309. 
Louisville    &    Nashville    R.    Co.    v. 

Eubank   (184  U.  S.  27,  46  L.  Ed. 

416),    130. 
Louisville    &    Nashville    R.    Co.    v. 

Kentucky    (183   U.    S.    503,    46  L. 

Ed.   298,  161  U.   S.   677  40  L.  Ed. 

819),  130.  139. 


4l>2 


TABLE    OF    CASES. 


nces  are  to  pages. 


Louisville    &    Nashville    R.    Co.    v. 

.Mississippi    (133  U.   S.   587,  33  L. 

Ed.  784),  37. 
Louisville  &  Nashville  Consolidated 

R.  Co.  v.  Wilson  (,132  Ind.  517,18 

L.  R.  A.  105),  187,  209. 
Lowe  v.  Railroad  Co.  (63  S.  C.  248), 

47. 
Lowenstein  v.  Evans   (69  Fed.  Rep. 

908) 
Lowry  v.  C,  B.  &  Q.  R.  Co.  (46  Fed. 

Rep.  83),  2s7. 
Lucke  v.  Clothing  Cutters'  &  Trim- 
mers' Assemhly  (77  Md.  396),  115. 
Lundquist   v.    Grand   Trunk  R.   Co. 

(121   Fed.   Rep.   915),   197. 
Luxton  v.   North  River  Bridge  Co. 

(  L53   U.    S.    525,    38   L.   Ed.    808), 

66,  81. 
McCall  v.  California   (136  U.  S.  134 

(1890),  34  L.  Ed.  391),  30. 
McChord  v.  L.  &  N.  R.  Co.   (183  U. 

S.  483,  46  L.  Ed.  289),  64. 
MeCreadv  v.  Virginia  (94  U.  S.  391, 

2  1  L.  Ed.  248),  18. 
McCulloch   v.    Maryland    (4   Wheat. 

316,  4  L.  Ed.  579),  7,  8,  9,  28. 
McGrew  v.  Missouri  Pac.  R.  Co.  (114 

.Mo.  210),  160. 
Mackin  v.  United  States   (117  U.  S. 

348,  29  L.  Ed.  909),  111. 
M.  S.  &  L.  R.  Co.  v.  Denahy  Main 

Colliery  Co.  (4  Ry.  &  C.  Tr.  Cases, 

452).   181. 
Magnolia,  The   (20  How.  296,  15  L. 

Ed.  909),  21. 
Maine  v.  Grand  Trunk  R.  Co.    (142 

U.  S.  217,  35  L.  Ed.  994),  29. 
Makall  v.  Ratchford    (82  Fed.  Rep. 

41).  106. 
Manarko    v.    Ward    (27    Fed.    Rep. 

529),  185. 
Manchester   v.    Massachusetts    (139 

f.  S.  240,  35  L.  Ed.  159),  18. 
Manufacturers'   Gas  Co.  v.   Indiana 

Nat.  G.  &  F.   Co.    (155   Ind.   545), 

19. 
Martin  v.  Southwark   (191  U.  S.  1, 

18  I..  Ed.  65),  L56. 

Marye  v.   Baltimore  &  Ohio  R.  Co. 

(127  U.  S    I  17.  32  L.  Ed.  94),  29. 

Massachusetts     v.     Telegraph     Co. 

(Ill    I\  S.   10,  35  L.  Ed.  628),  29. 

Maximum  Rate  Case    (167  U.   S.   1, 

42  L.  Ed.  251),  128,  159,  163. 
May  v.  New  Orleans  (178  U.  S.  496, 

44  L.  Ed.  1165),  26. 
Merchants'  Cotton  Comp.  Co.  v.  In- 
surance Co.   (151  U.  S.  368,  38  L. 

Ed.  195),  210. 


Messenger  v.  Pennsvlvania  Co.   (37 

N.  J.  L.  407),  189. 
Metropolitan  Trust  Co.  v.  Railroad 

Co.  et  al.  (90  Fed.  Rep.  683),  136, 

165. 
Michigan   Central  R.   Co.   v.   C,  M. 

&  L.  S.  R.  Co.    (1  111.  App.  399), 

46. 
Michigan    Insurance    Bank    v    Eld- 
red     (130    U.    S.    693,    32    L.    Ed. 

1080),  285. 
Miller  v.  The  Mayor  (109  U.  S.  385. 

27  L.  Ed.  971),  21. 
Minneapolis    &    St.    L.    R.    Co.    v. 

Minnesota    (186  U.   S.  257,  46  L. 

Ed.  1151),  134,  139. 
Minneapolis  &  St.  L.  R.  Co.  v.  Min- 
nesota   (193   U.    S.    53,   48   L.   Ed. 

614),  140. 
Minnesota    v.    Barber     (136    U.    S. 

313,  34  L.  Ed.  455),  17,  40. 
Minnesota    v.    Northern    Securities 

Co.    (194  U.  S.  48,  48  L.  Ed.  870, 

123  Fed.  Rep.  692),  363. 
Minnesota  Rate  Case  (186  U.  S.  257, 

46  L.  Ed.  1151),  53,  164,  166. 
Missouri,    Kan.    &    Tex.    R.    Co.    v. 

Haber    (169  U.   S.   613,  42  L.  Ed. 

878),  41,  52. 
Missouri,    Kan.    &    Tex.    R.    Co.    v. 

May    (194    U.    S.    267,    48   L.    Ed. 

971),  143. 
Missouri    Pac.    R.    Co.    v.   Nebraska 

(164   U.    S.   403,   41   L.   Ed.   489), 

238,  230. 
Missouri    Pac.     R.     Co.     v.     United 

States-  (189  U.  S.  274,  47  L.  Ed. 

811,  65  Fed.  Rep.  903),  290,  375. 
Missouri  Pac.  R.  Co.  v.  Texas  Pac. 

R.  Co.   (31  Fed.  Rep.  862),  317. 
Mobile  &  Ohio  R.  Co.  v.  Dismukes 

(94  Ala.  131,  17  L.  R.  A.  113), 276. 
Mogul    Steamship   Co.   v.   McGregor 

(App.  Cases,  Part  1,  p.  25,  23  Q. 

B.  Div.  598),  90,  98. 
Montague  v.  Lowry    (193  U.   S.  38. 

48  L.  Ed.  608,  115  Fed.  Rep.  25, 

75,  106  Fed.  Rep.  38),  92,  96,  352, 

°67 
Montello,  The    (20  Wall.  430,  22  L. 

Ed.  391),  21. 
Moores    v.    Bricklayers'    Union    (23 

Weekly  L.  Bui.  48),  114. 
Morgan  v.  Louisiana  (118  U.  S.  455, 

30  L.  Ed.  237),  41,  633. 
Mormon    Church    v.    United    States 

(136  U.  S.  1,  34  L.  Ed.  481),  148, 

361. 
Mugler  v.  Kansas  (123  U.  S.  623,  31 

L.  Ed.  205),  17. 


TABLE    OF    CASKS. 


423 


References  are  to  pages. 


Mumi  v.  Illinois    (94  U.   S.  113,  24 

L.  Ed.  77),  52. 
Murray  v.  C.   &  N.  W.  R.  Co.    (62 

Fed.  Rep.   24,  43,  35  C.  C.  A.   62, 

92  Fed.  Rep.  868),  55,  56,  58,  209, 

286,  287. 
Murray  v.  G.  &  S.  W.  R.  Co.  (4  Ry. 

&  C.  Tr.  Cases,  460),  181. 
Nashville,    etc.    R.   Co.   v.   Alabama 

(128  U.  S.  96,  32  L.  Ed.  352),  36. 
Nathan  v.  Louisiana  (8  How.  73,  12 

L.  Ed.  992),  13. 
Narramore  v.  Railroad  Co.  (96  Fed. 

Rep.  298),  390. 
National    Folder    Box    Co.    v.    Rob- 
ertson et  al.    (99  Fed.  Rep.  985), 

371. 
National  Harrow  Co.  v.  Quick    (67 

Fed.  Rep.  130),  371. 
Nebraska  Rate  Case  (169  U.  S.  550), 

318. 
New  England  R.  Co.  v.  Conroy  (175 

U.  S.  323,  44  L.  Ed.  181),  380. 
Newgold  v.   Am.   Elec.   &  Nav.   Co. 

(108  Fed.  Rep.  341),  307. 
New  York  v.  Miln    (11  Pet.  102,  9 

L.  Ed.   648),  31,  32. 
New  York  Life  Ins.  Co.  v.  Cravens 

(178  U.   S.  389,   44   L.  Ed.   1116), 

15,  24. 
New  York,  etc.  R.  Co.  v.  New  York 

(165  U.  S.  628,  41  L.  Ed.  853),  36. 
New  York  &  N.  R.  Co.  v.  N.  Y.  &  N. 

E.  R.  Co.  (50  Fed.  Rep.  867),  254. 
Niagara    Fire    Ins.    Co.    v.    Cornell 

(110  Fed.  Rep.  816),'  142. 
Nicholson  v.  G.  W.  R.  Co.   (4  C.  B. 

(N.  S.)   366),  187,  194. 
Nicol   v.   Ames    (173    U.   S.    509,   43 

L.  Ed.  786),  80. 
Northern  Pac.  R.  Co.  v.  Tynan   (56 

C.  C.  A.  192,  119  Fed.  Rep.  288), 

381,  391. 
Northern  Penn.  R.  Co.  v.  Commer- 
cial  Nat.   Bank   of   Chicago    (123 

U.  S.   727,  31  L.  Ed.  287),  155. 
N.  &  W.  R.  Co.  v.  Sims   (191  U.  S. 

41,  48  L.  Ed.  254),  28. 
Northern  Pac.  R.  Co.  v.  Adams  (192 

U.  S.  440,  48  L.  Ed.  742),  206. 
Oates  v.  National  Bank   (100  U.  S. 

239,  25  L.  Ed.  580),  55. 
Ohio    Coal    Co.    v.    Whitcomb    (123 

Fed.  Ren.  359),  208. 
Ohio  Oil  Co.  v.  Indiana   (177  U.  S. 

190,  44  L.  Ed.  729),  19. 
Old  Dominion  Steamship  Co.  v.  Mc- 

Kenna    (30  Fed.  Rep.  49),  115. 
Oliver    v.    Gilmore    (52    Fed.    Rep. 

563),  100. 


Opinion  of  Justices  (14  Gray,  615), 

9. 
Ordway  v.   Central   Nat.   Bank    (47 

Md.  245),  58. 
Oregon  Short  Line  &  U.  N.  R.  Co.  v. 

Northern  Pac.  R.  Co.   (9  C.  C.  A. 

409),  243,  253. 
Orient  Ins.  Co.  v.  Daggs  (172  U.  S. 

557,  43  L.  Ed.  552),  24. 
Osborne  v.  Railroad  Co.  (3  C.  C.  A. 

347,  52  Fed.  Rep.  912),  263. 
Otis   Steel   Co.   v.  Local  Union  No. 

18  (110  Fed.  Rep.  698),  106. 
Oxdale  v.  N.  E.   R.  Co.    (1  Nev.  & 

McN.  Ry.  Cases,  73),  249. 
Oxlaid  v.   Northeastern   R.  Co.    (15 

Com.  Bench  (N.  S.),  680),  233. 
Pacific     Railroad     Removal     Cases 

(115  U.  S.  2,  29  L.  Ed.  319),  81. 
Packet  Co.  v.  Aiken   (121  U.  S.  444, 

30  L.  Ed.  976),  34. 
Parsons,  The  Robert  W.    (191  U.  S. 

17,  48  L.  Ed.  73),  22. 
Parsons  v.  C.  &  N.  W.  R.  Co.    (167 

U.  S.  447,  42  L.  Ed.  231,  11  C.  C. 

A.  489,  63  Fed.  Rep.  903),  22,  284. 
Party   Rate  Cases    (145   U.    S.    263, 

275,  36  L.  Ed.  703),  184,  188,  192, 

194,  213,  214,  340. 
Passaic    Print    Goods    Co.    v.    Ely 

Walker  Dry  Goods  Co.,  98. 
Passenger  Cases  (7  How.  283,  12  L. 

Ed.  702),  10,  30,  31,  32. 
Patapsco  Guano  Co.  v.  North  Caro- 
lina Board  of  Agr.  (171  U.  S.  345, 

43  L.  Ed.  191),  17. 
Paul   v.   Virginia    (8   Wall.    168,    19 

L.  Ed.  357),  14. 
Peik  v.  Railroad  Co.   (94  U.  S.  164, 

24  L.  Ed.  97),  52,  58. 
Pennsylvania      v.      Wheeling,      etc. 

Bridge   Co.    (18   How.   421,   15   L. 

Ed.  4a5),  -65. 
Pennsylvania     R.     Co.     v.     Hughes 

(191  U.  S.  477,  48  L.  Ed.  268),  38, 

43,  78. 
Pennsylvania  R.  Co.  v.  Jones  (155 

U.  S.  333,  39  L.  Ed.  176),  170. 
Pensacola  Tel.  Co.  v.  W.  U.  Tel.  Co. 

(96  U.  S.  1,  12,  24  L.  Ed.  708, 

711),  11,  12,  33,  34,  68. 
People    v.    Butler    Street    Foundry 
(201  111.  236),  308. 
v.  Coler  (166  N.  Y.  144),  48. 
v.  Cook    (148  U.   S.   397,   37  L. 

Ed.  498),  140. 
v.  Coombs  (158  N.  Y.  532),  309. 
v.  Hawkens  (157  N.  Y.  1),  47. 
v.Jenkins      (1     Hill     (N.     Y.) 
469),  48. 


4i>4 


TAUI.E    OF    CASES. 


References  are  to  pages. 


People  v.  Kellev  (24  N.  Y.  74),  305. 

V.  Sheldon  (139  X.  V.  27.1).  101. 

Pettibone  v.   United  States    (148  U. 

S.  197,  37  L.  Ed.  419),  110. 
Philadelphia     Fire     Assn.     v.     New 
York    (110   U.    S.    110,   30   L.   Ed. 
342),  2  1. 
Phillips  v.  Iola  P.  Cement  Co.   (125 
Fed.   Rep.   593,    61   C.   C.  A.   19), 
96,  356. 
Pideock     v.     Harrington     (G4     Fed. 

Rep.  821  ).  363. 

Piersall   v.   Great    Northern    R.    Co. 

(161    U.    S.    G46,    40   L.   Ed.   838), 

139. 

Pittsburgh,    etc.    Coal   Co.   v.    Bates 

i  L56  l'.  S.  577,  39  L.  Ed.  538)..  25. 

Pittsburgh,    etc.    R.    Co.    v.    Backns 

(154  U.  S.  121.  38  L.  Ed.  10311.29. 

Plessv  v.  Fersiison   (163  U.  S.   537, 

41  L.  Ed.  256).  37. 
Plnmlov    v.    Massachusetts    (155   U. 

S.  46*1.  39  L.  Ed.  223),  16. 
Pondecker   Lumber  Co.   v.    Spencer 
CM    C.    C.   A.    430,    86    Fed.   Rep. 
SIC.  81  Fed.  Ren.  277),  276. 
Powell   v.   Pennsylvania    (127   U.   S. 

678.  32  L.  Ed.  253).  17. 
Prescott  &  A.  Cen.  R.  Co.  v.  A.   T. 
&  S.  F.  R.  Co.  (73  Fed.  Rep.  438), 
254. 
Pullman    Palace    Car   Co.    v.    Penn- 
sylvania   (141   U.  S.  IS,  35  L.  Ed. 
613),  29. 
Ragan  v.  Aiken  (9  Lea.  609).  185. 
Railroad  Co.  v.  Alabama  (128  U.  S. 
96,   32  L.  Ed.  352),   36. 
v.   Baker    (33   C.   C.   A.    648,   91 

Fed.  Rep.  224),  391. 
v.  Bangh   (149  U.   S.  368,   37  L. 

Ed.  772),  54. 
v.  Carden   (Tex.,  34  S.  W.  Rep. 

145),  48. 
v.  Dwyer   (75  Tex.  572),  48. 
v.  Ellis   (  L65   I'.   S.   1,  41   L.  Ed. 

667),  131.  142. 
v.   Fuller    (17   Wall.   560,   21  L. 

Ed.  7ioi,  ::.-,.  52. 
v.  Forsaitb   (59  X.  II.  122).  189. 
v.    Husen    (95   U.    S.   465,    24   L. 

Ed.   527),  40. 
v.  Iowa  (94  U.  S.  155,  24  L.  Ed. 

91 1.  52. 
v.  National  Bank   (102  U.  S.  14, 

26  L.  Ed.  61  i,  55. 
v.  Wolcott  (1  11    [nd.  267),  48. 
v.   People    (77    111.    443),    160 
y.  Pratt   (22  Wall.  L23,  22  L.  Ed. 

827), 
v.  Richmond    (19  Wall.  584,  22 
L.  Ed.  173).  51. 


Railroad     Commission    Cases     (116 

U.  S.  307,  29  L.  Ed.  636),  65,  128, 

129. 
Rasmussen  v.  Idaho  (181  U.  S.  198, 

45  L.  Ed.  820),  41. 
Ramsev  v.   Tacoma  Land  Co.    (196 

U.  S.  360).  373. 
Rattican   v.   Terminal   R.   R.    Assn. 

(114  Fed.  Rep.  666),  285. 
Reagan  v.  Farmers'  Loan  &  T.  Co. 

(154  U.  S.  362,  391,  38  L.  Ed.  1014, 

1021),  129,  131,  132,  133,  134. 
Reagan    v.     Mercantile    Trust     Co. 

(154   U.   S.   413,   38  L.  Ed.   1028), 

83,  129. 
Regina    v.    Bauld     (13    Cox,    C.    C. 

282),  113. 
Reid  v.  Colorado  (187  U.  S.  137,  47 

L.  Ed.  108).  41,  72,  78. 
Rex  v.  YVaddington    (1  East,   167), 

102. 
Rhodes  v.   Iowa    (170  U.   S.  412,  42 

L.  Ed.  1088),  26,  27,  71,  115. 
Rice  v.  Standard  Oil  Co.   (134  Fed. 

Rep.  464),  359,  369. 
Richmond  v.  Southern  Bell  Tel.  Co. 

(174  U.  S.  761),  11.  69. 
Richmond,    etc.    R.    Co.    v.    Tobacco 

Co.   (169  U.  S.  311.  42  L.  Ed.  759), 

39.  44. 
Riddle  v.  N.  Y.  L.  E.  &  W.  R.  Co. 

(39  Fed.  Rep.  290),  293. 
Robbins    v.    Shelby   County   Taxing 

District   (120  U.  S.  489,  30  L.  Ed. 

694),  28,  42.  50. 
Robertson  v.  Baldwin   (165  U.  S.  1, 

287.  41  L.  Ed.  719).  117. 
Robinson   v.    B.    &   O.    R.    Co.    (129 

Fed.  Rep.  753),  240. 
Rosenbaum  Grain  Co.  v.  C.  R.  &  T. 

R.  Co.    (130  Fed.  Rep.  46).  23S. 
St.   Clair  Co.  v.   Interstate   Sand   & 

Car  Tr.  Co.   (192  U.  S.  454,  48  L. 

Ed.  518),  34,  66. 
St.  Louis  Drayage  Co.  v.  L.  &  N.  R. 

Co.   (65  Fed.  Rep.  39),  254. 
St.    Louis    v.    Western    U.    Tel.    Co. 

148  U.  S.  92,  37  L.  Ed.  380).  68. 
St.  L.  &  S.  F.  R.  Co.  v.  Gill   (156  U. 

S.  649,  39  L.  Ed.  567),  132,  133. 
Sands   v.    Manistee   River   Imp.    oC. 

123  U.  S.  288,  31  L.  Ed.  149),  34. 
Santa  Clara  County  v.   So.  Pac.  R. 

Co.  (118  U.  S.  394,  30  L.  Ed.  118), 

131. 
Sell  Ionian  v.  Railroad  Co.    (207  Pa. 

198),  380. 
Srinni.it  v.  People  (18  Colo.  78),  47. 
Schofield   v.   L.   S.  &  M.   S.  R.   Co. 

(  13   Ohio    St.   571,    3   N.   E.    907), 

188. 


TABLE    OF    CASES. 


425 


References  are  to  pages. 


Schollenberger      v.       Pennsylvania 

(171  U.  S.  1,  43  L.  Ed.  49),  16,  26. 
Scott  v.   Donald    (165   U.   S.   58,  41 

L.  Ed.  632),  43. 
Sheldon  v.  Wabash  R.  Co.  (105  Fed. 

Rep.  785),  55,  58,  287. 
Sherlock    v.    Ailing    (93    U.    S.    99, 

103,  23  L.  Ed.  819),  35. 
Smiley  v.   Kansas    (U.   S.    Sup.   Ct. 

Feb.,  1905),  140. 
Smith  v.   Alabama    (124  U.   S.  465, 

31  L.  Ed.  508),  35,  36,  54. 
Smith    v.    Railroad   Co.    (63   N.    H. 

25),  48. 
Smvth  v.  Ames    (169  U.  S.  466,  42 

L.  Ed.  819),  83,  129,  132,  159. 
Social   Circle  Case  -(162  U.   S.   184, 

40  L.  Ed.  935),  162,  215,  263. 
Soda    Fountain    Co.    v.    Green     (69 

Fed.  Rep.  333),  370. 
South  Carolina  v.  Georgia  (93  U.  S. 

4,  23  L.  Ed.  782),  12. 

Sorell  v.  Railroad  Co.  (75  Ga.  509), 

160. 
Southern  Cal.  R.  Co.  v.  Rutherford 

(62  Fed.  Rep.  796),  107,  127. 
Southern   Indiana  Ex.  Co.  v.  U.   S. 

Exp.  Co.  (35  C.  C.  A.  172,  92  Fed. 

Rep.     1022,     88    Fed.    Rep.    659), 

148,  363. 
South  Dakota  Rate  Case  (176  U.  S. 

167,  44  L.  Ed.  417),  166. 
Southern  Fac.  R.  Co.  v.  Colo.  F.  & 

I.  Co.    (42   C.  C.  A.  12,   101  Fed. 

Rep.  779),  160,  162. 
Southern    Pac.    R.    Tax    Cases    (13 

Fed.  Rep.  722,  18  Fed.  Rep.  385), 

307. 
Southern  Ry.  Co.  v.  Carson  (194  U. 

5.  136,  48  L.  Ed.  907),  381. 
Southern  Ry.  Co.  v.  Greenboro  Ice 

&   Coal    Co.    (134   Fed.   Rep.    82), 
131. 
Southern    Rv.    Co.     v.    Machinists' 
Local  Union    (111  Fed.  Rep.  49), 
106. 
So.   Wire  Co.  v.   St.  L..   etc.  R.  Co. 

(38  Mo.  App.  191),  208. 
Spofford   v.    B.    &   M.    R.    Co.    (12S 

Mass.  326),  189. 
.State  v.  Corbett  (57  Minn.  345),  48. 
v.  Donaldson   (32  N.  J.  L.  151), 

114. 
v.  Donovan  (10  N.  D.  203),  309. 
v.  Fry   (63  Ind.  552),  48. 
v.  Glidden  (55  Conn.  46),  114. 
v.    Indiana   Ry.    Co.    (133    Ind. 

69),  48. 
v.  Morgan   (2  S.  D.  32),  48. 


State  v.  Omaha  R.  Co.  (Iowa,  84  N. 
W.  983),  48. 
v.    Railroad   Cos.    (47   Ohio    St. 

130),  188. 
v.   Sanders    (19   Kan.   127),   18. 
v.  Scott  (39  Minn.  1),  47. 
v.  Smith   (74  Iowa,  580),  309. 
v.Smith  (83  Me.  453),  47,  48. 
V.  Stewart   (59  Vt.  273).   114. 
State    ex    rel.    v.    Associated    Press 
(159  Mo.  410),  53. 
v.  Ind.  &  O.  Gas  &  Mining  Co. 

(120  Ind.  575),  19. 
v.  Simmons  Hardware  Co.   (109 
Mo.  118),   308. 
State  Freight  Tax  Case    (15  Wall. 

232,  21  L.  Ed.  140),  29,  32.  42. 
State  of  Iowa  v.  Chicago,  M.  &  St. 
P.    R.    Co.     (33    Fed.    Rep.    391), 
256. 
State  Railroad  Tax  Cases  (92  U.  S. 

575,   23  L.  Ed.   663),   29. 
Stockard  v.  Morgan,    (185  U.  S.  27, 

46  L.  Ed.  785),  28. 
Stockton    v.    Baltimore,      etc.,     (32 

Fed.  Rep.  9),  8. 
Stone  v.  Mississippi  (101  U.  S.  814- 

818',  25  L.  Ed.  1079),  87. 
Swift  v.  Railroad  Co.  (5S  Fed.  Rep. 

858),  55,  58,  287. 
Swift  v.  Tyson   (16  Peters  1,  18,  10 

L.   Ed.  865,  871),  55. 
Swift  v.  United  States   (25  Sup.  Ct. 

Rep.  276),  93,  121,  207. 
Steamship     Co.   v.   Louisiana     (118 
U.   S.   455,   30  L.   Ed.   237),   6,   33, 
41. 
Telegraph  Co.  v.  Philadelphia   (190 

U.   S.   160,  47  L.  Ed.   995),  34. 
Telegraph  Co.  v.  Texas    (105  U.  S. 

460,  26  L.  Ed.  1067),   34. 
Territory  v.  Evans    (2  Idaho,  634), 

18. 
Texas   Pacific   R.    Co.    v.   Archibald 
(170  U.   S.   665,   42  L.   Ed.   1188), 
381. 
Texas   Pacific   R.   Co.   v.    Int.   Com. 
Com.    (162   IT.    S.    19,7,    40   L.    Ed. 
940),  181,  338,  339. 
Texas,    etc.     R.    Co.    v.    Swearinger 

(122   Texas,   193),   390. 
Thomas  v.  C.  N.  O.  &  T.  P.  R.  Co. 
(62  Fed.  Rep.  803),  107,  108,  109, 
119,    124,    298,    358. 
Thompson  v.  London   &  N.   W.   R. 
Co.    (2   Nev.   &   McN.    Ry.    Cases 
115),  249. 
Tift  v.  Southern  Rv.  Co.   (123  Fed. 
Rep.  790),  289. 


426 


TALLE    OF    CASKS. 


References  are  to  pages. 


Toledo  A.  A.  R.  C.  v.  Pennsylvania 
R.  Co..  54  Fed.  Rep.  1.  c.  739; 
54  Fed.  Rep.  Tic.  19  L.  R.  A.  387), 
107.  1"!'.  L22,  127,  2SS.  291,  297, 
358. 
Townsend  v.  State    (147   Ind.  524), 

19. 
Tracy  v.  Talmadge  (14  N.  Y.  162), 

276. 
Trade   Mark   Cases    (100    U.    S.    82, 
2:,   L.   Ed.  550),  14. 

rs  Live  Stock  Exchange   (171 
V.   S.   578,   43   L.   Ed.  300),  355. 
Trans-Missouri   Freight  Association 
Case    (166    U.    S.    331,   41   L.    Ed. 
1024),   92,   121.   137,"  350. 

Troxler   v.    Southern   Ry.   Co.    ( 

X.   C. ,   14   L.   R.  A.   313),   380. 

Union  Pac.  R.  Co.  v.  Chicago  & 
C.  R.  Co.  (163  U.  S.  564,  589,  41 
L.  Ed.  265,  274),  51,  258. 
Union  Pac.  R.  Co.  v.  Goodrich  (149 
U.  S.  680,  37  L.  Ed.  896),  182, 
209. 
Union  Pac.  R.  Co.  v.  Ruff  (120  Fed. 

Rep.  102),  117. 
Union  Pac.  R.  Co.  v.  United  States 
(  L04  P.  S.  662,  26  L.  Ed.  884),  166. 
Union  Pac.  R.  Co.  v.  United  States 
(117    P.    S.    3.35,    29   L.   Ed.   920), 
167,  190. 
Union    Refrigerator   Transit   Co.    v. 
Lynch    (177  U.  S.  149,  44  L.  Ed. 
708  i.    29. 
Union  Stockyards  Co.  of  Omaha  v. 
C.  B.  &  Q.  R.  Co.    (Sup.  Ct.  Rep. 
January,    L905),   386. 
United  States  v.  Agler  (62  Fed.  Rep. 
826),  107,  358. 
v.  Amalgamated  Ass'n   (54  Fed. 

Rep.  994),  112. 
v.  Amedy    (11   Wheaton    329,    6 

L.   Ed.  502),  370. 
v.  Boyer     (85    Fed.    Rep.    425), 

41. 
v.  Brigantine  William   (2  Hall's 

Am.  L.  J.  255),  5. 
v.  C;  '  67  Fed.  Rep.  698), 

KiT.    111. 

v.  Cadwallader     (59    Fed.    Rep. 

677),  359. 
v.Chesapeake    &    O.    Fuel   Co. 

(105    Fed.    Rep.   93),   353. 
V.Chicago  &  X.  W.  R.  Co.   (127 

Fed.  Rep.  725),  341. 
v.  Coal    Dealers   Ass'n    of    Cal. 

(85    Fed.   Rep.     252),     353, 

362. 
v.DeCoursey     (82     Fed.     Rep. 

302),   275,   299. 


United  States  v.  Delaware,  L.  &  W 

R.    Co.    (40   Rep.    101-103), 

185,  214,  344. 
V.Elliott    (64   Fed.  Rep.   27,   62 

Fed.  Rep.  801),  107,  358. 
v.  Forty-three  Gallons  of  Whis- 
key   (93    U.    S.    188,    23    L. 

Ed.  846),  5. 
v.  Geddes    (131  Fed.  Rep.  452). 

147,  379,  388. 
v.  Greenhutt  et  al  (51  Fed.  Rep. 

205,   469),   359. 
v.  Hanley    (71   Fed.   Rep.    672), 

299. 
v.  Howell  (56  Fed.  Rep.  21),  299. 
v.  Interstate     Commerce     Com. 

(81  Fed.  Rep.  783),  337. 
v.  Jelico   Mt.    Coal   &   Coke   Co. 

(46  Fed.  Rep.   32),  352. 
v.  Joint  Traffic  Association  (171 

U.  S.  505,  43  L.  Ed.  259),  91r 

92,  94,  104,  121,  351. 
v.  John    Kelso      (86    Fed.    Rep. 

304),   308. 
v.  Kagama    (118    U.    S.    375,    30 

L.  Ed.  228),  5. 
v.  Kane  (23  Fed.  Rep.  748),  124. 
v.  Knight  Co.    (156  U.   S.   1,  39 

L.    Ed.    325,    60    Fed.    Rep. 

306,   934),     13,   82,    91,   349. 

350. 
v.Lehigh     Valley   R.    Co.     (115 

Fed.   Rep.   372),   150. 
v.  Mellin     (53    Fed.    Rep.    229), 

299.    ■ 
v.Michigan    Cen.    R.    Co.       (43 

Fed.  Rep.  26),  298,  300. 
v.Michigan    Cen.    R.    Co.     (122 

Fed.  Rep.  544),  210,  289. 
v.  Morsman  (42  Fed.  Rep.  448), 

148. 
v.  Mosley   (187  U.  S.  322,  47  L. 

Ed.  198),  334. 
v.  National   Lead   Co.    (75    Fed. 

Rep.  94),  307. 
v.Nelson    (52    Fed.    Rep.    646). 

359. 
v.Norfolk   &   W.    R.    Co.     (109 

Fed.  Rep.  831),  232,  343. 
v.  Northern  Pac.  R.  R.  Co.  (120 

Fed.  Rep.  546),  69. 
v.  Northern  Securities  Co.    (193 

U.    S.    197,    48    L.    Ed.    679, 

120  Fed.  Rep.  721),  92,  103, 

121,  351. 
v.Patterson  (55  Fed.  Rep.  605), 

358. 
v.  Price  (96  Fed.  Rep.  960),  309. 
v.  Railroad  Co.     (81   Fed.   Rep. 

783),  147. 


TABLE    OF    CA  ES. 


427 


References  are  to  pages. 


United  States  v.  Sanche(7  Fed.  Rep. 
715),  110,  111. 
v.  Seaboard  R.  Co.  (82  Fed.  Rep. 

563),  149. 
V.Stephens  (44  Fed.  Rep.  132), 

297. 
v.  Swift  (122  Fed.  Rep.  529),  93, 

103,  115,  209,  353. 
v.  Tozer     (39    Fed.    Rep.    269), 

193. 

v.  Trans-Missouri  Freight  Ass'n 

(166   U.    S.    290,   41   L.    Ed. 

1007),  92,  121,  137,  350. 

v.Union    Pacific   R.     Co.     (160 

U.    S.    1,   40   L.   Ed.    319;    8 

C.   C.   A.   282,   59   Fed.   Rep. 

813,    50   Fed.   Rep.   28),   69. 

v.Weber    (114"  Fed.  Rep.   950), 

106. 
v.  West  Va.  &  N.  R.   Co.    (125 

Fed.  Rep.   152),  231,  344. 
v.  Workingmen      Amalgamated 
Ass'n    (54   Fed.   Rep.   994), 
107,  116,  117,  358. 
ex  rel  Com.  v.  K.  S.  R.  R.  Co. 

(81  Fed.  Rep.  783),  337. 
ex  rel  Com.  v.  Saloen  Ry.   Co. 
(85  Fed.  Rep.  955),  337. 
Vance   v.    Vandercook      (170   U.    S. 

438,  42  L.  Ed.  1100),  43. 
Van  Patten  v.  C.  M.  &  St.  P.  R.  R. 
Co.    (81    Fed.    Rep.    545,    74    Fed. 
Rep.   981),   58,   160,   287. 
Veazie  Bank  v.  Fenno   (8  Wall.  533, 

19  L.  Ed.  482),  80. 
Vegalhahn   v.    Hunter      (167   Mass. 

62),  114. 
Voelker  v.  Railroad  Co.    (116   Fed. 

Rep.  867),  381,  382. 
Wabash  Ry.  Case  (118  U.  S.  557,  30 

L.  Ed.  244),  42. 
Wabash  R.  Co.  v.  Hannahan  et  al 
(121  Fed.  Rep.  563),  106,  119,  298. 
Wabash,    St.    L.    &    Pac.    R.    Co.    v. 

Illinois    (104   111.   476),   50,   58. 
Walker  v.  Cronin    (107  Mass.  555), 

115. 
Walker  v.  Keenan  (19  C.  C.  A.  668, 
73    Fed.    Rep.    755,    64    Fed.   Rep. 
992),  156,  278. 
Wall  v.   Norfolk  &  W.  R.  Co.    (52 
W.    Va.    485,    64    L.    R.    A.    501), 
45. 
Waterhouse  v.  Comer  (55  Fed.  Rep. 

149),  358. 
Waters  Pierce  Oil  Co.  v.  Texas,  (177 
U.  S.   28,  44  L.  Ed.  657),  24. 


Weber  v.  Virginia    (103  U.   S.   344, 

26  L.  Ed.  565),  40. 
Welton  v.  Missouri    (91  U.   S.  1.  c. 

280,   23  L.   Ed.   349),   32,   76. 
Western  Union  Tel.  Co.  v.  Call  Pub. 
Co.   (181  U.  S.  92,  45  L.  Ed. 
765),   55,    67,    189. 
V.Ann  Arbor  R.  Co.   (178  U.  S. 

239,  44  L.  Ed.  1053),   68. 
v.Gottlieb    (190    U.    S.    412,    47 

L.  Ed.  1116),  29. 
v.James    (162  U.   S.  650,  40  L. 

Ed.  1105),  35. 
V.Massachusetts  (125  U.  S.  530, 

31  L.  Ed.  790),  29,  68. 
v.Pendleton    (122  U.  S.  347,  30 

L.  Ed.  1187),  11,  35. 
v.  Penn.  R.  R.  Co.   (25  Sup.  Ct. 

Rep.  151),  69. 
v.  Taggard    (163   U.    S.     1,     41 
L.  Ed.  49),  29. 
Westmoreland  &  Cambria  Nat.  Gas. 
Co.  v.  Dewitt    (130  Pa.   St.   235), 
19. 
Wheaton  v.  Donaldson  (8  Peters  1.  c. 

658,  8  L.  Ed.   1079),   54. 
Whitwell    v.    Continental     Tobacco 
Co.  (125  Fed.  Rep.  454,  63  C.  C.  A. 
290)    96,  99,  356. 
Wight 'v.  United  States    (167  U.  S. 
512,  42  L.  Ed.  258),  182,  191,  209, 
262. 
Willimette  Bridge  Co.  v.  Hatch  (125 

U.  S.  1,  31  L.  Ed.  629),  66. 
Wilmington  &  W.  R.   Co.  v.  R.   R. 
Commissioners,  90  Fed.  Rep.  33), 
133. 
Wilson  v.  Atlantic  Coast  Line  R.  Co. 

(129  Fed.  Rep.  774),  195. 
Wilson  v.  Black  Bird  Creek  Marsh 
Co.   (2  Peters  245,  7  L.  Ed.  412), 
31. 
Windsor -Coal  Co.  v.  C.  &  A.  R.  Co. 

(52  Fed.  Rep.  716),  160. 
Winkler  v.  Pennsylvania  R.  Co.  (53 

Atl.  Rep.  90),  381. 

Wisconsin  &  C.  R.  Co.  v.  Jacobson 

(179   U.   S.   287,    45   L.    Ed.   194), 

139. 

Wisconsin  &  M.   R.    So.  v.   Powers 

(191  U.  S.  379,  48  L.  Ed.  229),  29. 

Woodruff  v.  Parham    (8  Wall.  123, 

19  L.  Ed.  382),  6,  13,  25. 
Worcester  v.   Georgia    (6   Pet.   515, 

8  L.  Ed.  483),  5. 
Young  v.  Kansas  City,  St.  J.  &  Co. 
B.  R.  Co.   (33  Mo.  App.  509),  160. 


4:28 


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TABLE  ON  REASONABLENESS  OF  KATES. 


Table  showing  cases  where  the  Commission  found  rates  unreasonable,  and 
ordered  same  discontinued,  and  the  subsequent  disposition  of  such  cases, 
either  under  order  of  court  or  voluntary  compliance  by  carrier.  (Pre- 
pared by  Commission  and  filed  with  the  Senate  Committee  on  Interstate 
Commerce  April  19,  1905.) 


Title  of  Case. 


1 1.  R  and  N 

I  N 

Farrar  r  E.  T.,  V.  and  Q   

Pyle  .v  s,.ns   ,-.  K.  T..  V.  andG. 

Il'iirlbnrt  c.  Pa.  R 

Hurll.urt  v.  I.   S   and  M.  S..   . 
Parkburst  &  Co.  v.  Pa.  K 


a  v.  Pa.  R..   

N.  <  >.  Cot  Exch.  v.  C,  N.  O.  and 

T.  P. 
James  &  Abbott  v.  E.  T.,  V. 

and  Q. 
N    ■  i,  (    t.  Exch.  v.  111.  Cent.   .. 
Re  Alleged  In.  Uates  on  Food 

Products. 

Harvard  Co.  v.  Pa.  Co 

( loxe  Bros.  i\  L.  V 

Bosl    F.  and  P.  Exch.  v.  N.  Y. 

and  X.  E. 
Del.    sr.   Grange  v.  N.   Y.,    P. 

and  X. 
James  and  M.  B.  Co.  v.  C,  N.  O. 

and  T.  P. 

l-'la.  K.  i  uinin.  v.  S.  F.  and  W. . 
•  Q,   E.    A  CO.  v.  T.  &P... 

Rising  (.'.  S.  F.  and  W 

Perry  >•.  F.,  C.  and  P.  .   , 


Murphy,  Wasey  &  Co.  v.  Wall... 
Merch.  Oh.  of  Spokane  v.  N-.  P. 

In  I      Ref.    ASSO.    v.    W.     X.    Y. 
and  1'. 

B  1.  Trad.-  V.  Ala.  Mid 


Duncan  v.  A.,  T.  and  S.  F. 


Duncan  <•.  So 
Morrell  v.  Un.  Pac.  . . 
New  land  v.  No.  Pac.. 

I'..  1-  and  \V. 


Bu. 


C,  X.  O.    and 


('in.   Kit 
1     1' 

Fit.  Bu.  v  I.  .  X.  .\ 

.  X.  K.. 

Mill  .v  Bro.  V.  N.  I -.and  SI.  I 

Cordele  M.  Shop  '■.  I.,  and  X. . . 

Colo.  Y.  and  I.  ( !<j  v.  80.  Pac  — 


v.  On    Pac   

May  v.  McNeil,  Receiver 
Jerome  Hill  c.  Co.    v.  M.,  K. 

Mo   R.  Comm.  v.  E.  8.  R.  I  "... 
M.Ik    Prod.    P.   Asso.    v.   1'.,   J.. 
an  I  W. 


Date  of 
Decision. 


Dec.    3,  1887 

..do  

Feb.  15,  1888 

do 

July  2d,  1888 

do 

July  23,  1888 

do 

Nov.  26,  1888 

Sept.  25, 1889 

Apr.  11,1800 
July  ID,  1M id 

Oct.  23,  1890 
Mar.  13,  1891 

Mar.  19, 1891 

Apr.  13,  1891 

June  29, 1891 

Oct.  29,  1891 

Nov.  30, 1891 

Jan.  28,  1892 

do 


Jan.  30,  1892 
Nov.  28,  1892 

Nov.  1 1.  1892 

Aug.  15,1893 

Nov.  3,  1893 


do.... 

Dec.  22,  1893 
Jan.  31,  1894 
.Mar.  23,  1894 


May  -.'9.   1894 

..  ..do  

Apr.    6,  1895 

Oct.  19,  1895 
.  do 

Nov,  •,'.-,,  1895 


Feb.    - 
do 

May  >0 

Feb  '-'•;.  1897 
Mar.  13,  1897 


Disposition. 


Order  complied  with. 

Do. 

Do. 

Do. 

Do. 

Do. 
Order  not  complied  with;  suit  for  damages 
adverse  to  complainant. 

Do. 
Order  complied  with. 

Do. 

Do. 

Order  partially  complied  with;  no  suit 
brought  in  court. 

Order  complied  with. 

Order  not  complied  with;  circuit  court  re- 
fused to  enforce  order. 

Order  partially  complied  with;  no  suit 
brought  in  court. 

Order  not  complied  with;  circuit  court  re- 
fused to  enforce  order.  ' 

Order  not  complied  with;  Supreme  Court 
enforced  part  of  order. 

Order  not  complied  with;  Supreme  Court 
refused  to  enforce  order. 

Order  partially  complied  with;  no  suit 
brought  in  court. 

i  >rder  not  complied  with;  no  request  for  en- 
forcement of  order. 

Order    partially    complied   with;    no   suit 
brought  in  court. 
Do. 

Order  not  complied  with;  circuit  court  re- 
fused to  enforce  order. 

Order  not  complied  with;  case  pending  in 
circuit  court. 

order  not  complied  with;  Supreme  Court 
refused  to  enforce  order. 

Order    partially   complied   with;    no  suit 
brought  in  court. 
Do. 
Do. 
Do. 

Order  not  complied  with;  circuit  court  re- 
fused to  enforce  order.  Amended  order 
granted,  which  was  not  complied  with 
and  upon  which  no  suit  was  brought. 

Order  nol  complied  with;  Supreme  Court 
refused  to  enforce  order. 
Do, 

I  »rder  no!  complied  with;  C.  C.  and  C.  C.  A. 
refused  to  enforce  order. 

i  nder  complied  with. 

Order  partially  complied  with;  no  suit 
brought  in  court. 

Order  first  complied  with,  then  compliance 
withdrawn;  C.  C.  A.  refused  to  enforce 
order. 

i  ii  der  complied  with. 
Do. 

Order  partially  complied  with;  no  suit 
brought  in  court. 

i  >rder  complied  with. 
Do. 


TABLE  ON  REASONABLENESS  OF  RATES. 


4C5 


Title  of  Case. 


Suffern,   Hunt  &  Co.  v.   I.,  D. 
and  W. 

Cary  v.  E.  S  R.  Co 

Callaway  v.  L  and  N 


Milw.  Ch.   Com.   v.  C,  M.  and 

St.  P. 
Cattle  Raisers'  Asso.  v.  F.  W. 

and  D.  C. 
Phillips.  B..  &  Co.  v.  L.  and  N. . 
Grain  S.  Asso.,  &c,  v.  111.  Cent 

Savannah  Bu.,  &C,  v.  L.  and  N 

Hampton  Bd.  Trade  v.  N.  C.  and 

St.  L. 
Warren-Ehret  Co.  v.  C.  of  N.  J 

McGrew  v.  Mo.  Pac 

Hilton  Lbr.  Co.  v.  W.  and  W.... 
Natl.  W.  L.  D.  Asso.  v.  N.  and  \V 
Wilm.  T.  Asso.  v.  C.  P.  and  V. 

Johnson  v.  C,  St.  P.,  M.  and  O. 
Re    Proposed    Advances   in 

Freight  Rates. 
Mayor,  &c,  of  Wichita  v.  A.,  T. 

and  S.  F. 

Marten  v.  L.  &  N 

Ga.  Peaeh  G.  Asso.  v.  A.  C.  L . . . 


Date  of 
Decision. 


Aberdeen,  etc,  Asso.  v.  M.  and  O.   June  25, 1904 

N.   O.  Live  Stock  Exch.    v.  T do. 

and  P. 
Re  Transportation  Fruit  by  P.  M.   July  27,  1904 


July    1,  1897 

Aug.  21,  1897 
Dec.  31,  1897 

Jan.  19,  1898 

Jan.  20,  1898 

Oct.  29,  1898 
June  22, 1899 

Jan.    8,  1900 

Mar.  10, 1900 

Dec.  22,  1900 
Feb.  8,  11(01 
Apr.  10,  1901 
Dec.  11.  1901 
Dec.  17',  1901 

May  7,  1902 
Apr.    1,  1903 

Oct.  24,  1903 

Nov.  21,  1903 
June   4,  19LI4 


Disposition. 


Order  complied  with. 

Do. 

Order  not  complied  with;  Supreme  Court 
refused  to  enforce  order. 

Order    partially   complied    with;     no    suit 
brought  in  court. 

Order  not  complied  with;  Supreme  Court 
refused  to  enforce  order. 

Order  complied  with. 

No  order  issued,  but  carriers  recommended 
to  readjust  rates:  no  suit. 

Order  not  complied  with;  circuit  court  or- 
dered  compliance;  no  appeal. 

Order  not  complied  with;  C.  C.  A.  refused 
to  enforce  order. 

Order  complied  with. 
Do. 
Do. 
Do. 

Order  not  complied  with;  circuit  court  re- 
fused to  enforce  order. 

Order  complied  with. 

No  order  issued,  but  suggestions  of  Com- 
mission partly  complied  with;  no  suit. 

Order  complied  with. 


Do. 


suit 


Order    partially   complied    with; 

brought  in  court. 
Order  not  complied  with;  petition  for  suit 

in  preparation. 
Order  complied  with. 
Action  withheld  to  allow  readjustment  of 

charges. 


30 


INDEX. 


References  are  to  sections. 

ACCIDENT  LAW  OF  MARCH  3,  1901— 

monthly  reports  of  railway  accidents,  375. 

failure  to  make  report  penalty,  375. 

report  as  evidence  against  the  carrier,  375. 

form  of  report,  375. 
ACCESSORIAL  SERVICES    (see  Cartage,  Storage,  Delivery,  Demur- 
rage)— 

must  be  rendered  equally  to  all  alike,  187. 

ACCOUNT— 

railroad  not  compelled  to  keep  separate  accounts  as  shipper  and 
carrier.  161. 
ACTS  IN  THE  REGULATION  OF  COMMERCE    (see  Amendments)— 
July  1,  1862.  Goverment  aided  Pacific  Railroads,  50. 
June  15,  1866, 

scope  and  purpose  of,  40. 
does  not  compel  through  routing,  40. 
does  not  interfere  with  State  police  laws,  40. 
does  not  interfere  with  State  Sunday  laws,  40. 
July  24,  1866, 

prohibits  State  monopolies  in  interstate  telegraph  business,  50. 

permissive  only,  50. 

does  not  grant  telegraph  company  eminent  domain  over  road's 

property,  50. 
does  not  apply  to  telephone  companies,  6,  51. 
May  29,  1884,  Bureau  of  Animal  Industry,  54. 
June  29,  1886,  authorizing  incorporation  of  national  trades  unions, 

78. 
Aug.  7,  1888,  supplementary  to  Act  of  1862,  50. 
July  2,  1890  (see  Anti-Trust  Act). 
Aug.  30,  1890,  unconstitutional,  33. 
March  2,  1893  (see  Safety  Appliance). 
May  2,  1895.  prohibiting  interstate  carriage  of  condemned  animal 

carcasses,  54. 
Feb.  2,  1897,  prohibiting  interstate  carriage  of  obscene  literature, 

54. 
June  1,  1898,  arbitration  between  carriers  and  employees,  78. 
March  3,  1899,  Secretary  of  War  vested  with  certain  powers.  53. 
May  25,'  1900,  prohibiting  interstate  carriage  of  game  unlawfully 

killed,  54. 
March  3,  1901,  Accident  Law,  54,  373. 

May  9,  1902,  police  power  of  State  extended  to  oleomargarine,  54. 
July  1,  1902,  prohibiting  interstate  carriage  of  dairy  products  falsely 

Feb.  2,  1903,  respecting  admissions  of  live  stock  into  state,  54. 

Feb.  25,  1903,  immunity  to  testifying  witnesses,  347. 
ACTIONS  AT  LAW  (see  Commencement  of  Actions)  — 

under  section  7,  Anti-Trust  Act,  339. 

under  section  8,  Interstate  Commerce  Act,  243. 
ADDYSTON  PIPE  TRUST  CASE,  68,  70,  75.  317. 


INDEX". 

References  are  to  sections. 

ADJOURNMENTS  AND  EXTENSIONS  OF  TIME  (see  Rules  of  Prac- 
i  n  e,  rule  9,  page  405. 

ARTICLES  OF  CONFEDERATION— 

in  connection  with  Convention  of  1787,  1. 

ANNAPOLIS  CONFERENCE— 

in  relation  to  Constitutional  Convention,  1. 

ADMIRALTY  AND  .MARITIME  JURISDICTION— 

not  limited  to  tide  waters,  12. 

extends  to  public  navigable  lakes  and  rivers,  12. 

what  are  navigable  waters,  12. 

boundaries  and  limits  of  matters  of  judicial  cognizance.  14. 

extends  to  Erie  Canal,  13. 

ADVANCE  OF  RATES— 

without  reason,  subject  of  investigation,  234. 

AFFIDAVITS— 

who  qualified  to  take  (see  Rules  of  Practice,  rule  7,  page  404). 

'REIGHTMENT— 

effect  of  rebates,  on  contract  of,  171. 

AGENT— 

act  of,  binds  carrier,  310. 

ALIENS— 

power  to  exclude,  2,  4. 

immigration  of  (see  Department  of  Commerce  and  Labor,  sec.  7). 

AMENDMENTS  TO  THE   INTERSTATE  COMMERCE  ACT— 

March  2.  1899. 

mandamus  to  compel  carrier  to  furnish  equal  facilities,  48,  308. 
Feb.  11,  1893, 

enforcement  of  self-incriminating  testimony,  48,  263. 
Feb.  11,  1903, 

Expedition  Act,  48.  347. 
Feb.  19,  1903  (see  Ei.kins  Act). 

AMENDMENTS  PROPOSED,  48. 

AMENDMENTS  OF  PLEADINGS  (see  Rules  of  Practice,  rule  8,  page 

105. 
ANIMAL   INDUSTRIES  ACT— 

•  of,  33. 

ANSWERS  (see  Rules  of  Practice,  rule  4,  page  403). 

ANTI-TRUST  ACT— 
Section  1,  314. 
3     tion2, 327. 
Section  3,  328. 

335. 

tion  6,  336. 

ion  7,338. 

ion  8,  346. 

passage  of,  64. 

purpose  of.  64. 

i  ral  provisions,  65, 
common-law  protect  ion  irrespective  of  act,  C6. 

•  it ut  ional it  y  of,  67,  315. 
construction  of,  by  Supreme  Court,  08. 

not  inconsistent  with  Interstate  Commerce  Act,  OS. 


INDEX.  469 

References  are  to  sections. 

ANTI-TRUST  ACT— continued. 

what  monopolies  denounced,  68. 

agreements  for  charges  tor  local  facilities  not  included,  68. 

not  restraint  of  trade,  illegal,  but  contract  in  restraint  thereof,  68. 

no  application  to  commerce  within  a  State,  75. 

application  to  state  "holding  companies,"  76,  92. 

application  to  combinations  of  labor  and  capital,  80,  326. 

necessities  of  life  on  same  footing  with  other  articles,  68,  74. 

combination  between  interstate  railroads  for  suppression  of  com- 
petition, 68. 

combination  to  regulate  competition  and  rates  by  pooling,  CS. 

procedure  under  the  Act,  331. 

interstate  transportation  is  subject  to  the  Act,  316. 

applies  to  transportation  wholly  within  a  territory,  106. 

Addyston  Pipe  Trust  Case,  317. 

California  Tile  Trust  Case,  318. 

Tennessee,  California  and  Ohio  Coal  Cases,  319. 

Chicago  Meat  Trust  Case,  320. 

Washington  Shingle  Trust  Case,  321. 

incidental  restraint  of  trade  not  violative  of  the  Act,  322,  323. 

Kansas  City  Live  Stock  Exchange  Case,  323. 

agreements  not  within  the  Act,  324. 

prevention  of  dealing  with  competitors  through  payment  of  rebates 
not  unlawful,  324. 

restriction  of  sales  to  certain  territory  not  unlawful,  324. 

incidental  restraint  of  trade  through  purchase  of  competitors,  324. 

agreement  of  manufacturers  to  fix  arbitrary  price  on  goods  not  un- 
lawful, 324. 

agreements  not  to  enter  into  competition,  325. 

criminal  provisions  of  the  Act,  314,  327,  328,  329. 

indictment  under,  essentials  of,  329. 

injunction  under  the  Act.  limited  to  the  Government,  332,  333. 

State  cannot  enjoin  under  the  Act,  333. 

State  not  a  person  or  corporation,  334. 

bringing  in  new  parties  and  service  of  subpoenas,  335. 

seizure  and   condemnation   of   property,   337. 

private  action  at  law  under  section  7,  339. 

measure  of  proof,  340. 

petition  when  sufficient,  340. 

measure  of  damages,  341. 

limitations  of  private  actions,  342. 

the  Act  as  defense  in  suits  by  alleged  illegal  combinations,  343. 

the  Act  as  defense  in  patent  litigation,  344. 

term  "person"  or  "persons"  include  what,  346. 

self-incriminating  testimony,  345. 

commodity  may  be  subject  of  illegal  agreement  in  restraint  of  trade, 
yet  subject  to  State  taxing  power,  68. 

does  not  apply  to  agreements  between  business  men  for  better  con- 
duct of  their  business,  though  incidentally  affecting  interstate 
commerce,  69. 

interstate  contract  unenforcible  at  common  law  violative  of  the 
Act,  74. 

APPEAL  (see  Expedition  Act  of  Feb.  11,  1903)  — 
right  of,  292. 

to  Supreme  Court  in  equity  where  United  States  complainant,  292. 
time  of  taking,  283. 
no  supersedeas  on,  293. 
provision   as   to  supersedeas  applies  only  to  appeals  from  circuit 

court,  294. 
under  Fourteenth  Amendment,  94. 


47U  INDEX. 

•ences  are  to  sections 

ARBITRATION  ACT— 

passed  June  1.  L898,  7S. 
the  courts  on,  79. 

"ARRIVAL"— 

meaning  of  term  in  Wilson's  Original  Package  Bill,  17,  52. 
contracl    for,  at  given  time  enforcible,  187. 

3SIGNMENT— 

cause  of  action  may  be,  247. 

ASSOCIATIONS— 

are  persons  within  meaning  of  Anti-Trust  Act,  348. 

ASSUMPTION  OF  RISK  (see  Safety  Appliance  Act). 

ATTACHMENT— 

of  foreign  railroad  cars,  37. 

for  disobedience  to  injunction,  283. 

AUTOMATIC  COUPLERS   (see  Safety  Appliance  Act,  sec.  2.). 

"AVERAGE  HABITUAL  USE"— 

rule  of,  19. 
BAGGAGE— 

Commission  no  power  to  compel  extra  allowance  for,  269. 

BANKRUPTCY— 

power  to  establish  uniform  system,  4. 

BASING  POINT  SYSTEM— 

meaning  of,  181. 
not.  illegal,  1S1. 

BELT  RAILROAD— 

subject  to  State  control  when  doing  local  business,  213. 

BILL  OF  EXCHANGE— 

not  interstate  commerce,  7. 

BILL  OF  LADING— 

when  on  interstate  commerce  State  tax  on  void,  7. 

when  on  foreign  shipment  exempt  from  State  or  Federal  taxation,  7. 

BLANKET  RATES   (see  Grouping  of  Rates). 

BOATS— 

State  may  regulate  speed  of,  on  navigable  waters,  38. 
State  may  prescribe  number  of  lights  for,  38. 

BOOKS  AND  PAPERS  (see  Immunity)— 

Amendments  of  1893  only  refers  to  testimony  before  the  Commis- 
sion. 264. 

on   9,    ''impelling  production  of,  unconstitutional,  252. 

compulsory  production  of  before  Commission,  274. 
mpulsory  production  of  under  expedition  Act,  350. 

compulsory   production   not   enforced   when   party   or    corporation 
thereby  exposed  to  penalty  or  forfeiture,  264. 

disi  inc!  ion  by  Commission  between  those  of  carriers  and  strangers, 
274. 

distinction   by  Commission  between  "private"  and  "public"  docu- 
tnents,  J.1 1. 

mar  li«-  summoned  before  commission  from  any  part  of  the  United 
States.  267. 

BOUNDARIES  OX  SEA— 

Staff  may  define,  subject  to  limitations,  10. 

BOYCOTTS  (see  Illegal  Combinations,  Strikes  and  Boycotts). 

BRAKES— 

driving  wheel  and  train   brakes   required    (see  Safety  Appliance 

It. 


INDEX.  171 

References  are  to  sections. 

BRANCH  LINE— 

point  on  may  be  charged  higher  rate,  187. 

BRIDGES— 

not  common  carriers,  6. 

power  of  Congress  to  authorize  between  States,  49. 

regulation  of  over  navigable  streams,  119. 

when  included  in  term  "Railroad,"  sec.  1,  115. 

power  of  Congress  to  charter  between  States,  59. 

State  regulation  of  toll,  on  interstate  void,  6. 

when  carrying  on  interstate  commerce,  15. 

State  cannot  regulate  tolls  on  interstate,  6,  22,  35. 

as  affecting  unjust  discrimination  against  locality,  185. 
BRIEFS  (see  Rules  of  Practice,  rule  14,  page  408). 
BROKER— 

State  tax  on  money  or  exchange  broker  not  a  regulation  of  com- 
merce, 7. 

BROTHERHOOD  OF  LOCOMOTIVE  ENGINEERS— 
rule  12  of,  violated  section  10  of  the  Act,  256. 

BURDEN  OF  PROOF    (see  Presumptions)  — 

follows  general  rules,  273. 

on  carrier  when  seeking  relief  under  section  4,  273. 

on  party  complaining,  273. 

on  complainant  shipper  before  the  Commissioner,  97. 

on  carrier  to  show  dissimilar  circumstances  and  conditions  under 
section  4,  225. 

on  carrier  where  there  is  a  departure  from  the  rule  of  the  law,  273. 

on  carrier  to  show  unreasonable  limitation  fixed  by  State,  125. 

on  complainant  to  show  carrier  has  exceeded  reasonable  standard, 
125. 

on  plaintiff  under  Safety  Appliance  Act  to  show  car  engaged  in  in- 
terstate commerce,  355. 

in  court  after  finding  of  Commission,  289. 

on  complainant  to  show  unreasonableness,  133. 

on  carrier  where  departure  from  equal  rates  on  several  branches  of 
the  road,  273. 

on  carrier  where  facts  justifying  disparity  peculiarly  within  his 
knowledge,  273. 

BUREAU  OF  COMMERCE  (see  Department  of  Commerce  and  Labor). 

BUREAU    OF   CORPORATIONS    (see   Departmpnt  of   Commerce  and 

Labor). 
BUREAU  OF  LABOR— 

created  under  Act  of  June  27,  18S4,  77. 

made  Department  of  Labor  June  13,  1SS8,  77. 
BUREAU  OF  MANUFACTURE— 

established  Feb.  18,  1903,  55. 
BUTTER   (see  Oleomargarine)  — 

rates  on  from  Lincoln  to  Denver,  142. 
CALIFORNIA  COAL  CASE,  319. 
CALIFORNIA  TILE  TRUST  CASE,  318. 
CANALS  (see  Erie  Canal). 

between  points  in  same  State,  subject  to  State  control,  22. 
CAPITALIZATION  OF  RAILROAD— 

as  basis  for  rate  making,  126,  135. 
CARCASSES— 

interstate  carriage  of  condemned  prohibited,  54. 
CAR  SERVICE— 

meaning  of  "car"'  in  Safety  Appliance  Act,  360. 

Commissioners'  report  for  1904  concerning,  118,  191. 


47^  INDEX. 

References  are  to  sections. 

CAR   SERVICE— continued. 

when  "engaged"  in  interstate  commerce,  361. 

common-law   duty   to  furnish,  189. 

undue  preference  in,  189. 

may  be  against  localities  or  individuals,  189. 

compulsion  by  way  of  mandamus.  189. 

no  defense  for  refusal  to  furnish,  that  cars  can  be  more  profitably 

employed  elsewhere,  189. 
delay   in  furnishing  cars,  when  discrimination,  189. 
furnishing  of  cars  on  spur  track  not  discrimination.  189. 
no  duty  to  notify  shipper  when  he  can  obtain  cars,  189. 
no  duty  of  carrier  to  meet  extraordinary  demand,  189. 
Staii-  statute  valid  requiring  furnishing  within  specified  time  aftc 

tender  of  freight.  38,  n. 
discrimination  in  private  cars,  146.  191. 

two  classes  whether  or  not  owner  interested  in  contents,  191. 
rules  and  rates  of  carriage  must  be  published,  236. 
tank  cars,  duty  to  furnish  impartially,  191,  205. 
carrier  may  acquire  cars  as  it  pleases,  118,  191,  192. 
leasing  of  car  does  not  carry  right  of  exclusive  use  by  owner,  193. 
no  discrimination  against  locality  where  lack  of  cars,  1S9. 
shortage  how  dealt  with,  308,  309. 
carrier  not  responsible  for  detention  of  cars,  189. 
refusal    to   receive   from    connecting   line    (see   Safety    Appliance 

Act,  sec.  3). 
may  refuse  to  haul  private  cars,  191. 

State  constitution  prescribing  rules  for  car  service  valid,  38. 
if  carrier  cannot  supply  cars  duty  to  notify  shipper,  191. 
common-law  duty  requires  furnishing  of  refrigerator  cars,  118. 

CARGO  RATES— 

discriminative.  158. 

CARLOADS  AND  LESS  THAN  CARLOAD  RATES— 

legality  recognized,  156. 

must  bear  reasonable  relation,  156. 

discriminations  based  on  ownership  of  cargo,  157. 

proper  differential  between,  from  Middle  West  to  Pacific  Coast,  156. 

create  dissimilar  circumstances  and  conditions,  156. 

differential  between  may  effect  unjust  discrimination,  156,  187. 

minimum  charge  to  be  for  one  hundred  pounds,  157. 
CARRIER  AND  SHIPPER  THE  SAME— 

carrier  may  give  itself  undue  preference,  190. 
CARRIERS  AND  TU  A. ASPORTATION  SUBJECT  TO  THE  ACT— 

all   carriers  in   interstate  commerce  not   included,  105. 

only  those  carriers  described  in  section  1,  106. 

express  companies  not   included,  1'07. 

transportation  of  persons  or  property  wholly  by  railroad,  105. 

or  partly  by  railroad  and  partly  by  water,  or  both.  105 

railroad  wholly  within  one  State  using  only  local   bills  of  lading, 
not,  105,  301. 

transportation  by  team  or  wagon  not  included,  in:,. 

transportation   wholly  by  water  not   included,  in."). 

transportation  wholly  within  a  territory,  106. 

foreign  commerce,  when  .subject  to  the  Act,  112. 

local  switching  company  when  and  when  not,  108. 
iportation  through  a  State,  109,  316. 

Interstate  eleel  tie  railroads,  l  L0. 

railroad  cannot   free  itself  by  leasing  its  road,  111. 

receivers,  when  subjed  tp  the  Act,  m. 
■  i .-.  when  subject  to  I  he  Act,  Lll. 

railroad  wholly  within  one  State  though  operated  by  interstate  car- 
riers,  1 15. 


INDEX.  473 

References  are  to  sections. 
■CARTAGE  (see  Storage,  Delivery)  — 

Commission  may  require  publication  of  charges  for  under  section  6, 

11G,  236. 
railroad  not  bound  by  custom  to  pay  charges,  116. 
unjust  discrimination  and  undue  preference  may  be  based  on,  116. 

187. 
not  in  general  a  terminal  expense,  116,  236. 

CATTLE   (see  Differentials  in  Rates,  Live  Stock). 

CHANCERY  (see  Equity  Proceedings). 

CHANNELS,    IMPROVEMENT   OF  NAVIGABLE    (see   Regulation   of 
Commerce,  Concurrent  Jurisdiction). 

CHARGES  REASONABLE  AND  JUST    (see  Rates)  — 

provision  of  first  section  affirmance  of  common  law,  119. 
rule  in  England,  119. 

question  of  reasonableness  one  of  fact,  49,  120,  175. 
in  absence  of  legislation  court  must  decide  what  is  reasonable,  119. 
practical  difficulties  in  enforcement  of  rule,  120. 
rate  unreasonable  when  paid  may  become  reasonable  before  trial 
in  court  finished,  120. 

CHARTER  CORPORATE— 

State  may  alter,  amend  or  repeal,  when,  101. 

federal  power  of  granting,  59. 

power  to  grant  not  within  enumerated  powers  of  Congress,  59. 

CHICAGO  MEAT  TRUST  CASE,  320. 

CHOICE  OF  ROUTE— 

undue  preference  in  denying  shipper,  197. 

CIGARETTES— 

State  may  declare  how  far  to  be  sold,  9. 

State  may  prohibit  sale  entirely  after  leaving  original  package,  9. 

cannot  prohibit  importation  in  original  package,  9. 

CIRCUIT  COURT  OF  APPEALS  (see  Federal  Courts)  — 
jurisdiction  on  appeal  in  contempt  cases,  89. 

CIRCUMSTANCES  AND  CONDITIONS— 

of  through  and  local  traffic  are  dissimilar,  150. 
not  made  dissimilar  by  quantity  of  freight,  153. 
rendered  different  by  accessorial  services,  155. 
employment  of  forwarding  agent  as  creating  dissimilar,  157. 
increased  cost  of  service  resulting  from  stoppage  create  dissimilar, 

150. 
of  carload  and  less  than  carload  are  dissimilar,  150,  156,  157. 
ocean  transportation  creates  dissimilar,  178. 
dissimilarity  of,  renders  preference  not  undue,  175,  176,  180. 
under  fourth  section,  221. 

competition  creates  dissimilar,  150,  175,  176,  180,  221. 
under  second  section  not  rendered  dissimilar  by  competition,  151. 
distinction  in  term  as  used  in  sections  2  and  4,  222. 

CIRCUS  TRAIN— 

carrier  may  refuse  to  transport  except  under  special  contract  lim- 
iting liability,  155. 

CITY  ORDINANCE— 

regarding  stone,  when  void,  3S,  n. 

regarding  street,  railroad  in  interstate  commerce,  38,  n. 


4:74  INDEX. 

References  are  to  sections. 
CLASSIFICATION— 

commodity,  when  not  classified,  given  commodity  rate,  20G. 

undue  preference  in.  208. 

complaim   concerning,  against  whom  made.  272. 

consultation   of   carriers   in  classification   not  illegal    combination, 

2   7. 
proof  of  undue  preference  in.  necessary  to  obtain  order  of  change,. 

208,    210. 
in  State  railroad  legislation.  103. 
reasonable  regulations  in  classification,  210. 
justice  of  classification  determined  by  comparison,  208. 
power  of  Commission  in  correcting,  209. 
no  contract  right  to  special  classification,  209. 
transfer  from  low  to  high  class  may  be  unlawful,  208. 
governing  principles  of  freight  classification,  208. 
specific  commodities. 

dried  fruits  and  raisins,  208 

hub  blocks  and  lumber,  20S. 

railroad  ties  and  rough  lumber.  208. 

Hostetter's  Stomach  Bitters  with  other  liquids,  208. 

patent  medicines  and  ale,  beer,  mineral  water,  208. 

toilet  soap  and  laundry  soap,  208. 

celery  and  vegetables,  208. 

open  end  envelopes  and  merchandise  envelopes,  208. 

iron  pipe  fittings  in  pipes  and  in  barrels,  208 

flour  and  cereal  products,  208. 

cow  peas  and  grain,  and  fertilizers,  208. 

COAL  (see  Differentials  in  Rati:)  — 

desirable  traffic  owing  to  small  hazard,  136. 

rates  on  in  Lake  Erie  district.  142. 

rates  on  from  Memphis  to  Louisville,  14. 

rates  on  from  South  McAlister  to  Denison,  Texas,  142. 

"CO-EFFICIENT"  POWER— 
meaning  of,  4. 

COINAGE   OF   MONEY— 

power  of  Congress  over,  4. 

COMBINATIONS   (see  Restraint  of  Trade,  Anti-Trust  Act,  Stiukes 
ami  Boycotts,  Conspiracy)  — 
other  than  in  transportation,  317. 

COMMENCEMENT  OF  ACTIONS— 
when  suit  begun,  285. 
where  to  be  filed,  283,  286. 

[ERCE"  (see  Interstate  Commerce,  Regulation  of  Commerce) — 
whal   is.  '',. 

not  traffic  alone,  but  intercourse,  6. 
transportation  of  passengers,  6. 

at    is  not.   7. 
what  are  subjects  of.  9. 

State  cannot  determine  what  are  subjects  of,  9. 
manufacture  not,   315. 
sale  as  an  incident  of  manufacture  not,  315. 

COMMERCE  CLAUSE— 

in  the  Constitution  discussed,  1. 

judicial  construction  of,  .",. 

rulings  of  State  courts  on.  38. 

with  reference  to  admiralty  jurisdiction,  12. 
COMMISSIONER  OF  CORPORATIONS   (see  Department  of  Commerce 
and  Labor). 


INDEX.  47"' 

References  are  to  sections. 

COMMODITIES   (see  Kinds  of  Traffic,  Differentials). 

"COMMON  CONTROL.  MANAGEMENT,"  ETC.— 

what  constitutes,  108. 

test  of,  is  through  routing  in  interstate  commerce,  108. 
immaterial  that  one  road  receive  sole  benefit,  108. 
express  agreement  obviated  by  acquiescence,  10S. 

COMMON  LAW— 

right  of  discriminations,  147. 

right  of  discrimination  not  unlimited,  148. 

no  obligation  to  charge  equal  rates  to  all  customers.  147. 

contract  governed  by,  when  in  interstate  commerce.  66. 

contracts  in  restraint  of  trade  unenforcible  at,  70,  74. 

no  common  law  of  conspiracy,  74. 

COMPARISON  — 

not  a  basis  for  determining  reasonableness  of  rates,  133,  138. 

COMPETITION— 

does  not  render  circumstances  and  conditions  dissimilar  under  sec- 
tion 2,  151. 

as  affecting  through  rates,  150. 

allows  giving  of  preference  or  discrimination,  175. 

at  the  seaport  renders  circumstances  and  conditions  dissimilar,  17S. 

railroad  competition  same  as  water  competition,  180. 

creating  dissimilar  circumstances  and  conditions  under  section  4, 
221. 

when  with  carriers  by  waters  not  subject  to  the  Act,  221. 

when  with  foreign  or  other  railroads  not  subject  to  the  Act,  221. 

in  peculiar  cases  between  railroads  subject  to  the  Act,  221. 

carrier  can  judge  for  itself  in  first  instance  under  section  4,  221. 

difference  under  section  4  and  section  2,  222. 

preferences  of  localities  enforced  by,  not  undue,  175. 

question  of  fact,  whether  controlling,  177,  180. 

application  of  the  rule,  176,  177. 

qualification  in  the  application  of  the  rule,  183. 

competition  created  by  carriers,  180. 

COMPLAINTS  (see  Pleadings,  Rules  of  Practice,  Rule  3,  page  403)  — 
repeal  of  law  creating  State  Commission  does  not  operate  as  with- 
drawal of  complaint  filed  by,  209. 

COMPLIANCE  WITH  ORDERS   (see  Rules  of  Practice,  Rule  18,  page 
409. 

CONCURRENT  AND  EXCLUSIVE   POWERS— 
distinguished  (see  Regulation  of  Commerce). 

CONGRESS,  JURISDICTION  OF    (see  Regulation   of  Commerce)  — 

no  jurisdiction  over  commerce  wholly  within  one  State,  75. 

labor  legislation  of,  77. 

the  unexercised  power  of,  56. 
CONSPIRACY— 

defined,  82. 

may  result  from  boycott,  80. 

a  misdemeanor,  not  a  felony,  82. 

essential  of  indictment  for,  82. 

doctrine  of  merger  inapplicable,  82. 

obstruction  to  United  States  mail,  82. 

each  conspirator  liable  for  acts  of  co-conspirator,  82. 

enforcement  of  rule  of  Brotherhood  of  Engineers  as,  82,  256. 

conspirators  liable  for  loss  to  private  parties,  82. 

concerted  quitting  employment,  81. 

doing  a  lawful  thing  in  unlawful  manner,  82. 


1:76 


INDEX. 


Referei s  are  to  sections. 

CONSPIRACY— continued. 

English   legislation   on,  83. 

conspiracy  under  the  Act  distinguished  from  common  law  con- 
spiracy, 83. 

malice  in  conspiracy.  84. 

application  to  contempt  cases,  89. 

United  States  statute  concerning,  82,  25G. 

under  section  10.  258. 

incidental  interference  with  commerce  not,  257. 

what,  constitutes,  83,  257,  259. 

combination  to  compel  railroad  to  break  contract  for  use  of  cars,  81. 

as  applied  to  proceedings  for  contempt,  89. 

newspaper  reports,  etc.,  to  show  character  of,  82. 
CONTAGIOUS  DISEASES— 

State  legislation  may  exclude  persons  infected  with,  9. 
CONTEMPT  IN  UNITED  STATES  COURTS— 

proceedings  criminal  in  nature,  89. 

United  States  statute  concerning,  89. 

power  of  Congress  over,  89. 

power  to  punish  for,  at  common  law,  89. 

interference  with  receiver  appointed  by  court  a  contempt,  89. 

not  triable  by  jury,  89. 

court  may  punish  for  crime,  though  indictable,  89. 

for  refusal  to  testify,  261. 

claim  that  proceeding  should  not  be  summary,  89. 

involves  no  element  of  personal  injury,  89. 

application  of  law  of  conspiracy,  89. 

liability  not  limited  to  party  of  record,  89. 

review  of  contempt  finding  on  appeal,  89. 

only  matters  of  law  considered,  facts  of  trial  tribunal  being  con- 
clusive, 89. 

power  to  punish  for  disobedience  of  injunction,  89. 

criminal  and  punitive  contempt,  89. 

direct  and  indirect  contempt,  89. 

engineer  guilty  of,  250. 
CONTINENTAL  TOBACCO  CASE,  72,  74. 
CONTINUOUS  CARRIAGE   (see  Through  Traffic). 

CONTRACTS   (see  Restraint  of  Trade,  Charters)  — 

between  shipper  and  carrier  governed  by  law  of  State  where  made, 
30. 

in  interstate  commerce  governed  by  rules  of  common  law,  66. 

in  restraint  of  trade  not  illegal  at  common  law,  66. 

limiting  liability  valid,   155. 

no  contract  right  to  special  classification,  209. 

CONTRIBUTORY   NEGLIGENCE    (see   Safety  Appliance  Act,   Anti- 
Trust  Act)  . 

CONVICTS— 

State  legislation  may  exclude,  9. 

CORPORATIONS— 

State  corporation  in  interstate  commerce  (see  Foreign  Corpora- 
i  i<>\ ). 

not  a  "citizen"  within  meaning  of  Constitution,  15. 

a  "person"  or  "citizen"  when  necessary  to  effective  legislative  in- 
tent   in   .statutes,   264. 

a  "person"  within  meaning  of  14th  Amendment,  15,  94,  164. 

requiremenl   of  Federal  franchise,  62. 

railroad  operating  in  several  States  corporation  of  what  State,  91. 

are  persons  within  meaning  of  Anti-Trust  Act,  34S. 

relation  of  State  to  Federal  corporations,  61. 


INDEX.  4:77/ 

References  are  to  sections. 

CORPORATIONS— continued. 

as  to  self-incriminating  testimony,  264. 

subject  to  penalties,  264. 

subject  to  indictment,  264. 

visitorial  power  over,  59. 

power  of  Congress  to  charter,  59. 

power  of  Congress  to  charter  bridge  across  navigable  streams,  50 

place  of,  immaterial,  113. 

place  of,  immaterial  as  to  regulating  power,  92. 

cannot   appropriate  property  without  compensation  therefor,   20. 

conviction  for  misdemeanor,  310. 

power  of  Congress  to  charter  not  in  enumerated  power,  59.- 

CONSTITUTION— 

article  I,  section  8,  par.  3,  1. 
article  I,  section  8,  par.  IS,  1. 
article  I,  section  9,  par.  5,  1. 
article  IV,  section  2,  1. 
article  VI,  par.  2,  1. 
article  I,  section  9,  par.  5,  3. 
article  III,  section  2,  par.  5,  14. 
article  IV,  section  3,  106. 

CONSTITUTION,  AMENDMENTS  TO— 
X,  1,  4. 
XIV,  1,  94,  100. 

COPIES  OF  PAPERS  OR  TESTIMONY   (see  Rules  of  Practice,  Rule 
17,  page  409. 

CORPSE— 

not  a  subject  of  commerce,  9. 

COSTS— 

how  levied,  283. 

how  paid  in  suits  by  Commission,  283. 

COST  OF  CARRIAGE— 

in  relation  to  receipts  as  regulating  charge,  131. 

COTTON— 

rates  on,  from  Florida  to  Savannah,  142. 

rates  on,  from  Indian  Territory  to  St.  Louis,  142. 

COURTS    (see  Federal  Courts)  — 

no  revisory  power  after  finding  by  Commission,  290. 

power  to  enforce,  testimony  before  Commission    (see  Witnesses). 

prior  leave  of,  unnecessary  to  entitle   shipper  to  proceed  against 

railroad  in  hands  of  receiver,  271. 
have  no  power  to  fix  rates,  124. 

CRIMES— 

none  at  common  law  in  United  States,  66. 
State  legislation  may  prevent  spread  of,  9. 

CROSSINGS  ON  SURFACE— 
State   may   regulate,   27. 

DAIRY  PRODUCTS— 

interstate  carriage  of  falsely  labeled,  prohibited,  54. 

DAMAGES   (see  Eighth  Section)  — 

measure  of  in  unjust  discrimination,  169,  243,  279. 

proof  of,  must  be  made  by  complainant,  279. 

speculative,  not  allowed,  279. 

jurisdiction  of  Commission  in  awarding,  279. 

measure  of,  where  rate  charged  exceeds  published  rate,  279. 


47S  INDEX. 

References  are  to  sections. 

DAMAGES— continued. 

for  discrimination  in  car  service.  189. 

remedy  for  failure  to  render  special  service,  155. 

measure  of,  in  rate  wars,  199. 

DECREASE  OF  RATE— 

not  until  three  days  notice  of,  238. 

DEFENSE— 

of  judgment  before  Commission  to  action  in  Federal  court.  252. 
individual  claimant  not  barred  by  suit  of  bis  association,  252. 
of  statute  of  limitations  (see  Limitations  of  Actions). 
no  defense  in   discriminations  between  persons  that  the  privilege 

may   be   withdrawn   at  will,   169. 
adoption,  printing  and  posting  schedule  of  rates  as,  122. 

DELAY— 

not   of  itself  ground  for  complaint,  272. 

in  furnishing  cars  may  effect  discrimination,  189. 

DELIVERY    (see  Stobage,   Cartage)  — 

no  additional  duty  of,  imposed  by  section  1,  116. 

services  if  rendered  must  be  impartial  and  reasonable,  11G,  187. 

distinction  between  American  and  English  customs  of,  116. 

live  stock  and  perishable  property  require  additional  facilities  for, 

117. 
extra  charge  for  these  additional  facilities  unlawful,  117. 
railroad   may  contract   with   stock-yards   company  for  delivery   of 

live  stock,  117. 
where  consignees  off  main  line,  117. 
higher  charge  for  quick  delivery,  155 

DEMURRAGE  CHARGES— 

undue  preference  shown  by,  187. 

unjust  discrimination  in  failure  to  collect,  162. 

DEMURRER— 

notice  in  nature  of  (see  Rules  of  Practice,  rule  5,  page  404). 
statute  of  limitations  raised  by,  246. 
DEPARTMENT  OF  COMMERCE  AND  LABOR— 
sections  1.  2,  3,   1,  5.  351. 
section   6,  352. 

sections  7.  8,  9,  10,  11.  12,  '351. 

established  by  Ad  of  1'  bri  ary  IS,  1903,  55,  77,  349. 
Department  of  Labor  made  part  of,  77. 
Secretary  of  Commerce  and  Labor,  349. 
a  Cabinet  member,  55. 
what  corporation  subject   to,   55. 
Act  never  judicially  construed,   55. 
Bureau  of  Manufactures,  55,  349. 
Bureau  of  Corporations,  55,  350. 
Commissioner  of  Corporations,  350. 
duty  of  Commissioner,  55,  350. 
has  no  judicial   pow<  is.  55. 
power  of  Commissioner,  55,  350. 
Deputy  Commissioner,  350. 
employees,  350. 

immunity  to  witnesses  testifying  before,  350. 
compilation  and  publication  of  information,  350. 

DEPARTMENT  OF  LABOR— 

established  June  13,  1888,  77,  349. 

duties  of  Commissioner,  77,  78. 

made  part  of  the  Department  of  Commerce  and  Labor,  349. 


INDEX.  479 

References  are  to  sections. 

•DEPOSITIONS  (see  Rules  of  Pbactice,  Rule  12,  page  406)  — 
taken  by  order  of  Commission,  261. 
notice  must  be  given,  261,  272. 
testimony  by  deposition  may  be  compelled,  261. 
manner  of  taking,  261. 
when  witness  in  foreign  country  261. 
must  be  filed  with  Commission,  261. 
before  whom  taken,  261. 

DETENTION— 

not  of  itself  ground  for  complaint,  272. 

DIFFERENTIALS   (see  Kixns  of  Traffic)  — 

in  rates  between  live  hogs  and  packing  house  products,  200. 
wheat  and  flour,  200. 

raw  materials  and  manufactured  product,  200. 
anthracite  and  bituminous  coal,  200. 
live  hogs  and  cattle  and  dressed  products  of  each,  200. 
grain  and  grain  products,  203. 
competitive   cities,  »186. 

DISCRIMINATION    (see    Unjust    Discrimination). 

DISEASED  CATTLE,  EXCLUSION  OF  (see  Regulation  of  Commerce, 
Concurrent  Jurisdiction)  . 

DISPENSARY  LAWS  OF  SOUTH  CAROLINA  (see  Spiritous  Liquors). 

DISTRICT  ATTORNEY  (see  Safety  Appliance  Act,  sec.  6)  — 

power  of,  under  Elkins  Act,  249. 

duty  to  prosecute  under  section  12,  262. 

in  general,  287. 
DISTRICT   OF  COLUMBIA— 

power  of  Congress  to  grant  charters  in,  59. 
DIVERSE  CITIZENSHIP   (see  Jurisdiction  of  Fede?al  Courts). 
DIVISION  OF  TERRITORY— 

undue  preference  in,  198. 

DOCKS,    REGULATION   OF    (see   Regulation   of   Commerce,    Concur- 
rent Jurisdiction). 

"DOING  BUSINESS"— 

distinction  from  "carrying  on"  interstate  commerce,  15. 
DRAW  BARS   (see  Safety  Appliance  Act,  sec.  5). 

DRUMMERS— 

may  be  sent  through  various  States,  15. 

ECONOMIC   CHANGES— 

influence  of.  on  construction  of  Federal  Constitution,  63. 

EIGHTH  SECTION— 

liability  of  carriers  for  damages,  243. 

construction  of,  244. 

plaintiff  must  show  injury,  245. 

action  at  law,  244. 

cause  of  action  under  may  be  assigned,  247. 

EIGHTEENTH  SECTION— 

salaries  of  Commissioners,   Secretary,  etc.,   296. 

expenses  of  the  Commission.  296. 

employees  of  the  Commission,  296. 

offices  and  supplies  of  the  Commission,  296. 
ELECTION    (see  Ninth  Section) 

ELECTRIC   RAILROADS— 

between  States,  subject  to  the  Act,  110. 
between  States,  rates  on,  142. 


4S0  INDEX. 

References  are  to  sections. 
ELEVATORS— 

construction  of,  on  right  of  way,  196. 

ELEVENTH  AMENDMENT— 

suit  against  State  Commission  not  suit  against  State  within  mean 
ing  of,  95. 
ELEVENTH   SECTION    (see  Interstate  Commerce  Commission)  — 

Interstate  Commerce  Commission,  260. 

number  of  Commissioners,  260. 

how  appointed,  260. 

term  of,  260. 

requirements  of,  260. 

removal.  260. 

in  general,  260. 

ELKINS    U'T.  310,  311. 

discussed,  48,  106,  146,  167,  233,  240,  249,  254,  255,  262. 

EMBARGO— 

Congress  may  place  on  foreign  commerce,  2. 

EMINENT  DOMAIN— 

power  of,  in  Congress,  4. 

power  of,  in  telegraph  companies  under  Act  of  1866,  50. 
does  not  give  telegraph  company  right  of  way  over  railroad  prop- 
erty. 50. 

EMPLOYEES— 

interstate  commerce  in  relation  to  employees  therein,  84. 
relation  of  carrier  and  employee  that  of  free  contract,  86. 
right  to  leave  employment,  subject  to  certain  limits,  81,  86. 
distinction  between   relation   of   giiasi-public  and   private  corpora- 
tions to  employees,  83. 
abandonment  of  train,  86. 
peaceable  strike  lawful,  257. 
State  laws  establishing  qualifications  of,  valid,  27. 

ENGLISH   ACTS   IN  REGULATION  OF  COMMERCE— 
Railway  Clauses  Consolidated  Act,  42,  44. 
Railway  and  Canal  Traffic  Act,  42,  173,  174,  1S2. 
Regulation  of  Railways  Act,  1873,  42. 
Conspiracy  and  Protection  of  Property  Act,  1875,  83. 

ENUMERATED  POWERS— 

government  one  of,  4. 

power  to  charter  corporations  not  within,  59. 

EQUITY  PROCEEDINGS   (see  Injunction)  — 
jurisdiction  of  Federal  court  over,  249. 
by  Act   of  February  19,  1903,  249. 

for  protection  of  interstate  commerce  against  combination  in  vio- 
lation of  the  Act,  250. 
pleading  in  (see  Pleading  and  Pboof), 
jurisdiction  irrespective  of  citizenship,  250. 
to  protect  against  combinations  in  restraint  of  trade,  66. 

ERIE   CANAL— 

subject  to  admiralty  and  maritime  jurisdiction,  13. 

ESTOPPEL 

Interstate   Commerce   Commission   not   bound   by   ruling  of  State 
Commission,  204. 
EVIDENCE   (s<f  Ninth  Section,  Testimony,  Witness)  — 

reports  of  railway  accidents  as  (see  Act  rDENT  Law,  sec.  3). 

tax   return  of  railroad  officials  to  establish  reasonableness,  131. 

contracts  and  tariffs  filed  and  published  under  section  6,  234. 

of  contract  for  through  routing,  108. 

contracts  between  third  persons  not  party  to  proceedings,  268. 


INDEX.  4S1 

References  are  to  sections. 

EVIDENCE— continued. 

advanced  rate  filed  with  Commission  going  in  effect  pending  hear- 
ing, 131. 

newspaper  reports,  etc.,  to  show  character  and  purpose  of  con- 
spiracy, 82. 

EX  PARTE  STATEMENTS   (see  Moot  Questions). 

EXPEDITION  ACT  FEB.  11,  1903— 
terms,  349. 
judicial  application  of,  350. 

EXPERT  TESTIMONY   (see  Testimony,  Witness,  Evidence). 

EXPORTS  (see  Imports  and  Exports,  Preference  Clause)  — 

prohibition  of  tax  or  duty  on,  from  any  State  not  applicable  to  in- 
terstate traffic,  3. 

EXPRESS  COMPANIES— 

not  subject  to  the  Act,  107. 

railroad  not  bound  to  grant  equal  facilities  to,  107. 

may  pool  earnings,  230. 
EXTENSION  OP  TIME  (see  Rules  of  Practice,  Rule  11,  page  405). 
FACILITIES  FOR  INTERCHANGE  OF  TRAFFIC— 

danger  of  strike  as  excuse  for  refusal,  256. 

injunction  to  compel,  256. 

construction  of  term,  211. 

State  control  of,  213. 

does  not  compel  through  routing,  211. 

meaning  of  "track  and  terminal  facilities,"  211. 

FEDERAL  COURTS,  JURISDICTION  OF— 

exclusive  of  State  courts  under  the  Act,  44,  248. 

concurrent  jurisdiction  where  action  based  on  common  law  of  in- 
terstate commerce,  44,  248. 

distinction  between  cause  arising  or  not  arising  under  Act,  248. 

suit,  where  brought,  248. 

over  equity  proceedings  under  the  Act,  249. 

under  Elkins  Act,  255,  310. 

irrespective  of  citizenship,  96,  248. 

prior  to  adoption  of  Fourteenth  Amendment,  94. 

based  on  cause  arising  under  Constitution  and  laws  of  United 
States,  44,  248. 

when  such  a  suit  arises,  44,  249. 

no  jurisdiction  on  removal  where  State  court  had  none,  43,  248. 

power  of,  cannot  be  limited  by  State  legislation,  95. 

in  admiralty  and  maritime  cases,  14. 

under  Judiciary  Act  of  1879,  14. 

includes  maritime  cases  wholly  within  single  State,  14. 

of  Circuit  Court,  283,  286. 

of  Circuit  Court  of  Appeals  in  contempt  cases,  89. 

suits  by  non-resident  stockholders  against  State  Commission  con- 
testing State  imposed  rates,  96. 

under  Anti-Trust  Act,  330,  332. 

power  of  State  regulation  of  intrastate  traffic  subject  to  review  by, 
95. 

in  questions  involving  reasonableness  of  rates,  95,  96. 

cannot  be  limited  by  State  law,  95. 

in  general,  44. 

where  State  statute  denies  due  process  or  equal  protection  of  the 
law,  95. 

not  bound  to  follow  State  courts,  43. 

no  revisory  power  of  Commission's  findings,  290. 

31 


•AS2  INDEX. 

References  are  to  sections. 
FEES— 

of  attorney,  how  allowed  and  collected.  243. 

of  attorney  under  Anti-Trust  Act,  338,  339. 

of  witnesses,  261  (see  Rules  of  Practice,  Rule  13,  page  407). 

FERRIES   (see  Regulation  of  Commerce.) 

when  included  in  terra  "railroad,"  section  1,  11a. 

regulation  of,  on  navigable  streams,  49. 

in  interstate  commerce,  15. 

as  instrumentalities  of  interstate  commerce,  49. 

free  from  State  control,  49. 

FIFTEENTH  SECTION— 

notice  to  common  carrier  to  cease  from  violation  of  Act,  281. 
notice  jurisdictional,  282. 

FIFTH  SECTION— 

pooling  of  freights  and  division  of  earnings  forbidden,  226, 

construction   of,   227. 

agrements  controlling  through  routing  and  allotting  territory,  228. 

agreement  not  within  the  prohibition,  229. 

agreements  for  division  of  through  freights  between  members  of 
trunk  line  not  unlawful,  229. 

agreement  for  consultation  for  promotion  of  reasonable  rates,  229. 

division  of  immigrant  traffic  in  proportion  to  domestic  traffic,  229. 

relation  to  Anti-Trust  Act  of  1890,  230. 

"physical"  pooling,  227. 

"money"  pooling,  227. 

pooling  as  defense  to  action  by  carrier,  231. 

meaning  of  term  "freights,"  228. 

FILING  OF  SCHEDULES   (see  Schedules). 

FINES— 

for  refusal  to  obey  injunction  or  other  process,  283. 

FIRE   INSURANCE— 

not  interstate  commerce,  8. 
FIRST  SECTION   (see  Carriers  and  Transportation  Subject  to  the 
Act,  Charges  Reasonable  and  Just,  Rates,  Commerce). 

FISHERIES— 

how  far  State  may  regulate,  10. 

FLOUR   (see  Differentials  in  Rates). 

FOOD  PRODUCTS— 

protection  against  adulterated,  9. 

rates  on,  from  Mississippi  River  to  eastern  points,  42. 

alleged  excessive  rates  on,  134. 

State  may  protect  people  against  fraud  in  sale  of,  9. 

FORECLOSURE  SALE— 

purchasers  at  have  no  contract  right  against  State  legislation  sub- 
sequent to  mortgage,  101. 
FOREIGN  COMMERCE    (see  Commerce,  Interstate  Commerce,  Regu- 
lation of  Commerce)  — 
when  subject  to  the  Act,  112. 
Congress  may  place  embargo  on,  2. 
no  power  in  State  over,  2. 

congressional    inaction  in  foreign  and  interstate  commerce  distin- 
guished, 36. 
FOREIGN  CORPORATIONS   (see  Corporations)  — 
State  may  exclude  or  impose  conditions  on,  15. 

right  to  engage  in  business  in  local  state  depends  on  whether  cor- 
poration is  carrying  on  interstate  commerce,  15. 


INDEX.  483 

References  are  to  sections. 

FOREIGN  CORPORATIONS— continued, 
may  depend  upon  its  own  charter,  15. 
meaning  of  term  "carrying  on  interstate  commerce,"  15. 
public  carriers  are  "carrying  on  interstate  commerce,"  15. 
bridge  companies  are  "carrying  on  interstate  commerce,"  15. 
ferry  companies  are  "carrying  on  interstate  commerce,"  15. 
telegraph  companies  are  "carrying  on  interstate  commerce,"  15. 
telephone  companies  are  "carrying  on  interstate  commerce,"  15. 
steamboat  companies  are  "carrying  on  'interstate  commerce,"  15. 
railroad  companies  are  "carrying  on  interstate  commerce,"  15. . 
manufacturer  who  ships  goods  to  purchaser   in  another   State  is 

manufacturing  or  trading  company  is,  15. 
may  send  drummers  through  other  States,  15. 
cannot  establish  office  within  local  State  without  latter's  consent, 

15. 
may  acquire  stock  of  competing  State  corporation,  68. 

FOREIGN  COUNTRIES— 
Porto  Rico  not,  3. 

FORMS— 

page  402  et  seq. 
FOURTEENTH  AMENDMENT— 

adoption  of,  94. 

applies  to  corporation  as  well  as  individuals,  94. 

protects  carrier  from  unreasonable  State  interference,  100. 

FOURTH  SECTION  (see  Long  and  Short  Haul)  — 

history  of,  220. 

proviso  of,  224. 

burden  of  proof  under,  225. 

"over  the  same  line,"  meaning  of,  223. 

application  for  relief  under  proviso  (see  Rules  of  Practice,  rule  19, 
page  409). 

carrier   may   judge   in    first   instance    whether    circumstances    and 
conditions  dissimilar,  175. 
FRANCHISE— 

State  tax  on  valid,  20. 

requirement  of  federal  franchise  for  business  corporation  in  inter- 
state commerce,  62. 

FRAUD— 

cause  of  action  at  common  law  for  unjust  discrimination  irrespect- 
ive of,  169. 
FREE  OR  REDUCED  RATE  TRANSPORTATION— 

persons  and  property  entitled  to,  303. 

FREIGHT— 

term  means  commodity  carried,  not  compensation  paid,  228. 
State  may  impose  penalty  for  refusal  to  deliver  on   payment   of 

charges,  38,  n. 
State  may  prohibit  charge  of  higher  rate  than  shown  by  bill  of 

lading,  38,  n. 
State  may  prohibit  increase  of  rate  after  tender  of  shipment,  38,  n. 

FREIGHT  ASSOCIATION  CASE,  73. 

FUNCTIONS  OF  GOVERNMENT— 

blending  of  legislative,  executive  and  judicial   in  Interstate  Com- 
merce Commission,  49. 
FURNITURE— 

rates  on  from  Lansing,  Mich.,  to  California,  142. 
GAS  (see  Natural  Oil  and  Gas). 


4^i  INDEX. 

References  are  to  sections. 
GAME— 

unlawfully   killed,  interstate  carriage  prohibited,   54. 

GARNISHMENT— 

railroad   not    subject  to  because  in  possession  of  cars   of  foreign 

carrier,  37. 
railroad  is  subject  to  for  debts  of  shipper,  37. 

GIBBONS  v.  OGDEX— 
discussed,  5. 

GRAB  IRON  AND  HANDHOLDS   (see  Safety  Appliance  Act,  sec.  4). 

GRAIX  AX1)  GRAIN  PRODUCTS   (see  Differentials  in  Rates)  — 

rates  on  from  northwestern  Iowa  to  Chicago,  142. 

rates  on  from  Chicago  to  New  York,  142. 

rates  on  from  Riuville.  Wash.,  to  St.  Paul,  142. 

rates  on  from  Kentucky  to  Newport  News,  142. 

rates  on  from  East  St.  Louis  to  eastern  points,  142. 

GROUPING  OF  RATES— 

ining  of.  1S2. 
not  unlawful  unless  undue  preference  results,  182. 
illustrative  cases  on  the  subject,  182. 

GUARDS  AND  GUARD  POSTS— 

State  law  valid  requiring  them  on  bridges  and  trestles,  27. 

HARBORS,  POLICING  OF  (see  Regulation  of  Commerces. 

HEARINGS  (see  Rules  of  Practice,  rule  11,  page  405)  — 
place  of,  298. 
assignments  for  at  request  of  either  party,  272. 

HEATING  OF  PASSENGER  TRAINS   (see  Act  of  186G). 
may  be  regulated  by  State  law,  27. 

HIGHWAYS— 

construction  of.  subject  to  State  control,  22. 
power  of  Congress  to  authorize  national,  59. 
"HOLDING  COMPANIES"  (see  Anti-Trust  Act). 

"ICING"— 

an  important  factor  in  refrigerator  car  service,  118. 

ILLEGAL  COMBINATIONS  (see  Tenth  Section,  Anti-Trust  Act,  Re- 

-  I  i:\I.\T    OF   Tkade). 
ILLEGALITY  OF  RATE— 

as  defense  in  action  against  carrier,  235. 
IMMUNITY  TO  TESTIFYING  WITNESSES    (see  Witnesses)  — 

no  vicarious  immunity,  264. 

none  to  corporation  from  enforced  testimony  of  officers,  264. 

to  corporations  under  Elkins  Act,  264. 

IMPORTS  AND  EXPORTS— 

lower  rate  on  from  or  to  seaport  than  on  domestic  traffic,  not  un- 
due preference,  178. 
intermediate  points  entitled  to  proportionate  reduction,  179. 

er   of    President  to   suspend  free  importation  of   certain  arti- 
cles. 53. 
publication  and  filing  of  rates  under  section  6,  179,  240. 

IMPRISONMENT— 

lished  by  Elkins  Act,  255,  310. 

INCORPORATION    (see  Corporations) — 

power  of  Congress  to  charter  bridge  across  navigable  streams,  50. 
railroad  running  through  several  States  and  holding  charter  from 

each,  a  corporation  of  each,  91. 
place  of,  immaterial  as  to  regulating  power,  92,  113. 


INDEX.  485 

References  are  to  sections. 

INCREASE  OP  RATE— 

not  until  after  ten  days'  notice  of,  23S. 

INDIAN  SUPPLIES— 

for  United  States  may  be  transported  at  less  than  published  rate, 
307. 
INDIAN  TRIBES   (see  Regulation  of  Commerce). 

INDICTMENT— 

defective  in  not  showing  discrimination,  258. 

essentials  of,  258. 

agent  of  railroad  who  merely  collects  freight  not  indictable,  258. 

who  in  general,  258. 

essentials  of  under  Anti-Trust  Act,  329. 

personal  to  witness,  264. 

extends  only  to  "private"  books  and  papers,  264. 

distinction  between  "private"  and  "public"  documents,  264. 

immunity  limited  to  subject  of  testimony,  266. 

perjury  excepted,  261. 

under  amendment  of  Feb.  25.  1903,  347. 

under  amendment  of  1893,  263. 

INFORMATION  TO  PARTIES    (see  Rules  of  Practice,  rule  20,  page 

410). 
INJUNCTIONS  (see  Equity  Proceedings)  — 

to  enjoin  interference  with  interchange  of  traffic,  80. 

for  protections  to  receivers,  80. 

against  labor  combinations  interfering  with  commerce,  80. 

not  defeated  because  crime  involved,  88. 

scope  of,  in  trade  disputes,  88. 

distinction  where  persons  are  in  privity  or  independent  tort-feas- 
ors, 88. 

mandatory  injunction  in  interstate  commerce,  90. 

cannot  enjoin  competition,  only  agrements  not  to  compete,  68. 

value  of  preliminary  injunction,  90. 

to  enjoin  extortionate  charges  and  unjust  discrimination,  249. 

to  restore  passage  of  freight  backward  and  forward,  250. 

to  restrain  order  of  State  railroad  commission,  195. 

against  unjust  discrimination,  216. 

to  enforce  section  2,  170. 

under  section  16,  291. 

to  compel  interchange  of  facilities,  256. 

not  issued  to  compel  performance  of  personal  services,  256. 

in  rate  wars,  199. 

defense  of  pooling  of  earnings,  231. 

government  only  can  enjoin  under  Anti-Trust  Act,  333. 

private  party  cannot  enjoin  under  Anti-Trust  Act,   333. 

State  cannot  enjoin  under  Anti-Trust  Act,  334. 

order  which  neither  forbids  nor  commands  the  doing  of  a  specific 
act  not  granted,  124. 
INSPECTION  LAWS   (see  Regulation  of  Commerce)  — 

absolute  prohibition   of  certain  cattle  within   certain  seasons   un- 
lawful, 32. 

of  State,  valid,  but  must  be  reasonable,  9,  32. 

State    cannot   require   inspection    of    animals   before   slaughtering, 
when,  38,  n. 

Congress  has  no  power  of,  over  State  manufacturing  business,  33. 


486  INDEX. 

References  are  to  sections. 

INSURANCE— 

not    interstate  commerce,  8. 

subject  to  State  legislation,  8. 

incorporation  by  Congress  in  District  of  Columbia.  59. 

INTENTION— 

does  not 'make  shipment  interstate.  114. 

INTERCHANGE    OF  TRAFFIC    (see    Facilities   for  Interchange   of 

Traffic,  Termin  ils). 
INTERSTATE    COMMERCE     (see    Commerce,    Regulation    of    Com- 

MER<  i:  I  — 
common  law  of.  43. 

free  from  Si  aw  control  by  police  or  taxing  power,  35, 
under  federal  constitution.  6. 
in  relation  to  employees  therein.  84. 
shipment  not  made  interstate  by  intention,  114. 
federal  sovereignty  in,  :'.. 

when  carried  on  by  water  subject  to  maritime  law,  43. 
no  statutory  regulation  of  prior  to  Interstate  Commerce  Act,  43. 
navigation  is.  6. 
transportation  is.  6.  15,  316, 
telegraph  messages,  6.  15. 
telephone  messages,  6.  15. 

Carrying  of  lottery  tickets  between  States,  6. 
spiritous  liquors,  9. 

business  of    'carrying  on,"  free  from  State  taxation,  18. 
right  to  sell  or  solicit  sales  free  from  State  taxation,  18. 
immaterial  that  taxation  is  without  discrimination,  18. 
immunity  from  unlawful  interference  not  limited  to  railroads,  hut 

Is  to  all  engaged  in  interstate  commerce,  83. 
carriage  between    points    in   same    State   passing  through   another 

State,  6. 
Congress  alone  can  act  as  to  admission  of  goods  from  one  State  to 

another,  16. 
ferry  companies  between  States,  15. 
bridge  companies  between  States,  15. 
INTERSTATE  COMMERCE  ACT  (see  Various  Slujects)  — 
genesis  of  the  act,  45. 
passage  of  the  act  Feb.  4,  1887,  46. 
purpose  and  scope  of  the  Act.   IT. 
judicial  construction  of  the  Act,   17. 
power  of  Congress  with  reference  to,  54, 
amendments  of  the  Act,  48. 
proposed  amendments,  48. 
INTERSTATE  CO.M.MERCE  COMMISSION— 
original  members,  260. 
enl  members,  260. 
appointment,  term,  qualification,  vacancies,  etc.  (see  sec.  11). 
a  general  reference,  211.  278. 
gtttm-judicial  body,  255,  278. 
may  Ik-  judge,  then  prosecutor,  278. 
general  powers  of.  261. 
finding  of  facts  by  prima  facie  evidence,  277. 

■  make  reports  of  Investigation,  276. 
what  report  necessary,  278. 

raining  order  of.  no!   legislative  in  character,  228. 
powers  of  under  section  6,  233. 
,!   under  section  L2,  261. 
no  power  as  to  car  service,  269. 
no  power  in  granting  special  privileges,  269. 
no  power  to  compel  extra  allowance  for  baggage,  269. 


INDEX.  487 

References  are  to  sections. 

INTERSTATE  COMMERCE  COMMISSION— continued. 

no  power  to  allow  attorney's  fees,  269. 

no  power  of  entering  judgments,  2G9. 

no  power  of  imposing  penalties,  269. 

no  power  to  make  order  over  one  not  party  to  proceeding,  269. 

power  to  institute  investigation,  269. 

to  summon  witnesses,  269. 

to  determine  relation  of  rates  as  between  localities  and  commodi- 
ties, 209,  269. 

to  find  existing  rates  unreasonable  or  unfair,  269. 

over  foreign  commerce  extends  to  what,  112. 

over  foreign  corporation  limited  to  this  country,  113. 

cannot  compel  through  routing.  108,  211. 

no  power  to  enforce  finding,  282. 

discretion  of  under  section  7,  Safety  Appliance  Act,  53. 

only  violation  of  the  Act  considered,  272,  279. 

rulings  of  the  Commission  as  precedents,  48,  275. 

may  declare  rate  unreasonable,  but  cannot  order  substitute,  .47. 

may  determine  whether  rate  is  reasonable  or  unreasonable,  47,  132. 

no  power  to  fix  rates,  maximum,  minimum  or  absolute,  47,  123. 

no  power  to  raise  rate  in  rate  wars,  141. 

no  power  to  compel  carrier  to  deliver  cars  to  another  carrier,  242 

power  to  grant  relief  under  section  4,  53  (see  sec.  4). 

duty  of  chairman  under  Act  of  June  1,  1888,  78. 

no  jurisdiction  except  over  carriers  and  those  who  invoke  its  juris- 
diction against  carriers,  106. 

powers  and  duties  of  Commission  under  Act  of  1888,  50. 

not  bound  by  ruling  of  State  Commission,  204. 

power  to  correct  classification,  209. 

prima  facie  effect  of  findings,  48. 

address  of,  Washington,  D.  C,  298. 

form  of  procedure,  295. 

official  seal  of,  295. 

oaths  by  members,  295. 

quorum,  what  constitutes,  295. 

appearance  of  parties  before,  295. 

proper  party  to  complaint,  287. 

subpcenaes  may  be  signed  by  members,  295. 

sessions  of,  298. 

salaries  of  commissioners,  296. 

secretary  of,  296. 

expenses  of,  296,  297. 

employees,  296. 

offices  and  supplies,  296. 

INTERVENING  PETITIONS— 

when  allowed,  279,  284   (see  page  402). 

INTRASTATE  RATES  (see  Rates)  — 

State  power  in  regulating  limited  by  federal  authority,  97. 

standard  of  reasonableness  considered  by  court  not  same  as  that 
considered  between  carrier  and  patron,  97. 

what  is  reasonableness,  98. 

what  considered  in  determining,  98. 

no  definite  standard  of,  98. 
INVESTIGATION— 

of  complaints  by  Commission,  270. 

preliminary  investigation  by  Commission  not  necessary,  287. 
"JIM  CROW"  CARS— 

not  prohibited  by  second  section,  165. 

how  far  State  may  regulate,  28. 


INDEX. 

References  are  to  sections. 

JOINT  RATES  (see  Through  Rates). 

JUDGMENTS,  ENTERING  OF  (see  Interstate  Commerce  Commission, 
Powers  of). 

JUDICIAL  PRECE I  >ENT— 

doctrine  of,  has  limited  application,  48,  186,  275. 

judgment  before  Commission  bar  to  action  in  the  court,  252. 

JUDICIARY  ACT  OF  1879— 

jurisdiction  of  federal  courts  under,  14. 

JURY  TRIAI,— 

right  to  discussed,  2S4. 

may  be  waived  in  writing,  283. 

KANSAS  CITY  LIVE  STOCK  EXCHANGE  CASES,  126,  323. 

KINDS  OF  TRAFFIC    (see  Differentials  in  Rates)  — 
discrimination  in,  200. 
may  also  be  against  locality,  200. 

second  section  does  not  deal  with  discrimination  between,  145. 
preference  against  must  involve  injury,  201. 

KNIGHT  COMPANY  CASE,  70,  73. 

LABELLING  OF  GOODS— 

State  cannot  require  it,  when,  38,  n. 

LABOR  COMBINATIONS   (see  Anti-Trust  Act)  — 

the  courts  on  the  relation  to  interstate  commerce,  79. 

LABOR   LEGISLATION    OF    CONGRESS    (see    Department   of   Com- 
merce AND  LABOE). 

LABOR  ORGANIZATION— 

right  of  includes  rights  of  representation,  v  7 

LEASES— 

State  may  require  recording  of  railroad  leases,  38,  n. 

LEGAL  TENDER  NOTES— 
] lower  to  issue,  4. 

LESSEES— 

when  subject  to  the  Act,  111. 

LICENSE  FEE— 

city  may  exact  of  interstate  telegraph  companies,  20. 

State  cannot  exact  for  use  of  navigable  waters,  23. 
LIFE    I XS TRANCE— 

not  interstate  commerce,  8. 

LIGHTS  ON  VESSELS— ~ 

State  may  prescribe  number  of,  38,  n. 

LIKE  KIND  OF  TRAFFIC— 
meaning  of  in  section  2,  167. 

LIME— 

State  cannot  require  inspection  of  when  imported  into  State,  38,  n. 

LIMITATION  OF  ACTION— 

no  provision  in  Interst:  te  Commerce  Act,  246. 
State  statm-  controls,  246,  285. 
question  raised  by  demurrer,  246. 

ns  to  run,  246. 
when  suit  is  begun,  285. 
private  actions  under  Anti-Trust  Act,  344. 
in  cases  of  criminal  prosecution,  259a. 


INDEX.  489 

References  are  to  sections. 

LIMITATION  OP  LIABILITY— 
to  stipulated  valuation,  30. 
to  carrier's  own  line,  30. 
complete  exemption,  30. 
complete  exemption  where  pass  used,  166. 
State  statute  placing  duty  on  carrier  of  tracing  loss  void,  35. 
State  statute  placing  duty  on  carrier  of  showing  loss  not  on  bis 
line  valid,  35. 

LIS  PENDENS— 

purchasers  bound  by  order  of  Commission,  111. 

LIVE  HOGS  (see  Differentials  in  Rates). 

LIVE    STOCK    (see   Regulation   of  Commerce,   Concurrent   Jurisdic- 
tion )  — 

transportation  from  State  to  State  not  included  in  Act  of  1884,  54. 

increased  hazard  in  carriage  warrants  higher  rate,  136. 

require  additional  facilities  for  delivery,  117. 

railroad  may  contract  with  stock  yards  company  for  delivery  of, 
117. 

when  commercial  transit  of  ends,  16,  68. 

power  of  Secretary  of  Agriculture  over,  54. 

State  cannot  require  inspection  of  and  fee,  38,  n. 

LOCAL  AND  THROUGH  RATES— 

charging  of  local  rate  not  unjust  discrimination  when  no  through 

rate,  215. 
charge  of  local  rate  greater  than  proportionate  part  of  through  rate 

not  unlawful,  127. 
division  of  through  rates  usually  less  than  corresponding  local,  128. 
distinction  between,  127,  128. 
the  Commission  on,  128. 
mileage  basis  not  required,  128. 
responsibility  for  through  rates,  129. 
manner  of  making  through  rate  only  important  as  to  its  legality, 

128. 
not  properly  compared,  138. 
local  rate,  including  terminal  expenses,  is  prima  facie  excessive  as 

part  of  through  rate,  128. 
local  rate  need  not  correspond  with  division  of  joint  through  rate, 

128. 

LOCAL  AND  THROUGH  TRAFFIC— 

circumstances  and  conditions  of  are  dissimilar,  150. 

through  traffic  different  "kind  of  service"  from  local  traffic,  150. 

LOCALITY— 

second  section  does  not  deal  with  preferences  in  favor  of  or  against, 

145. 
rates  will  not  be  changed  to  equalize  commercial  conditions,  134. 
adjustment  of  rates  between,  183. 
preference  of  excused  by  competition,  175,  176. 
competing  cities  on  opposite  banks  of  rivers,  185. 
recognition   of  natural  advantage  of  situation  not   undue   prefer- 
ence, 184. 

LOCAL  INDUSTRIES— 

Congress  no  power  over,  75. 
LONG  AND  SHORT  HAUL   (see  Fourth  Section)  — 

application  where  short  haul  wholly  within  one  State,  93,  223. 

carrier  may  judge  in  first  instance  whether  circumstances  and  con- 
ditions dissimilar,  175. 


490  INDEX. 

References  are  to  sections. 

LOTTERY  TICKETS— 

as  subjects  of  commerce,  S. 

carriage  between  States  may  be  prohibited  by  Congress,  6,  54. 
carriage  between  States  may  be  punished  by  Congress,  53. 
in  general.  56,  57. 

LUMBER— 

rates  on  from  southwest  Virginia  to  New  York,  142. 
rates  on  from  Dalton  to  Lynchburg,  142. 

MADISON.  JAMES— 

on  federal  regulation  of  interstate  commerce,  1. 

MALICE— 

as  an  ingredient  of  civil  action,  84. 

MANDAMUS— 

to  compel  equal  distribution  of  cars,  189,  308,  309. 

remedy  cumulative,  308,  309. 

to  compel  carrier  to  obey  the  law,  48,  308. 

MANDATORY  INJUNCTIONS    (see  Injunctions). 

MANUFACTURE— 

distinguished  from  commerce,  315. 

MANUFACTURER— 

when  engaged  in  interstate  commerce,  15. 

MANUFACTURING,  BUSINESS  OF— 
not  interstate  commerce,  7. 

MANUFACTURING  CORPORATIONS    (see  Foreign  Cobpobations). 

.MARINE  INSURANCE— 

not  interstate  commerce,  8. 

MARITIME    JURISDICTION    (see  Admiralty  and  Maritime  Jurisdic- 
tion i  . 
MEASURE  OF  DAMAGES    (see  Damages). 

'  MEASURE  OF  PROOF   (see  Pboof). 

MELONS— 

rates  on  from  South  Carolina  to  New  York,  142. 

MILEAGE  BASIS— 

rule  as  to  State  taxation,  19. 
Commission  no  power  to  man*1.  137. 
no  requirement  for  in  Act,  128. 

MILEAGE  TICKETS  (see  Tickets). 

MILK— 

grouping  rates  basis  to  New  York,  142. 

MILLING   INDUSTRY— 

discrimination  against,  200. 

MILLING  IN  TRANSIT  (see  Stoppage  in  Transit)— 
rates  from  south   Minnesota   to  Chicago,  142. 
rates  from  Meridian  and  New  Orleans.  14:.'. 
rates  from  Chicago  and  Cincinnati  to  southern  territory.  142. 
rates  from  Pacific  coast  to  Denver  and  Missouri  river,  142. 

MISDEMEANOR— 

failure  to  publish  rate,  310. 

as  to  310. 

person  engaged  in  monopoly  guilty  of.  327. 


INDEX. 


References  are  to  sections. 


i«Jl 


MISDEMEANOR— continued. 

party   to   contract   or   combination,   of    conspiracy   in   restraint   of 

trade,  guilty  of,  328. 
under  Anti-Trust  Act,  314,  327,  328,  329. 
conspiracy  a  misdemeanor  not  felony,  82. 

MODE  OF  SHIPMENT— 
discrimination  in,  205. 

MONEY— 

power  of  coinage,  4. 

MONOPOLY— 

meaning  of  term,  72. 

in  law  and  in  fact  distinguished,  73. 

persons  engaged  in  guilty  of  misdemeanor,  327. 

MOOT  QUESTIONS— 

not  decided,  272,  273. 
MUNICIPAL  SUBSCRIPTIONS— 

for  building  road,  no  effect  on  competing  locality,  184. 

NARROW  GAUGE  RAILROADS   (see  Railroads). 

NATIONAL  BANK— 
power  to  charter,  4. 

NATIONAL  HIGHWAYS  (see  Regulation  of  Commerce)— 

power  of  Congress  to  authorize,  59. 
NATIONAL  INCORPORATIONS   (see  Corporations)— 

relation  of  state  to  federal  corporations,  61. 

State  cannot  interfere  with  federal  corporation,  61. 

franchise  not  subject  to  State  taxation,  61. 

requirements  for  federal  franchise  for  business  corporation  in  in- 
terstate commerce,  62. 

as  a  means  of  regulating  commerce,  60. 

power  of  Congress  to  charter  corporations,  59. 

removal  of  case  from  State  to  federal  court  under  Act  of  1875,  59. 

power  of  Congress  to  incorporate  interstate  railroad  companies,  59. 

power  to  charter  corporation  for  construction  of  interstate  bridge, 
59. 
NATURAL  ADVANTAGES   (see  Localities). 
NATURAL  OIL  AND  GAS  (see  Oil)  — 

as  subject  of  commerce,  11. 

not  subject  to  State  legislation,  11. 

distinction  between  and  animals  "ferae  naturae."  11. 

State  statute  prohibiting  piping  out  of  State  void,  11. 

State  statute  prohibiting  escape  of  into  air  valid,  11. 

NAVIGABLE  WATERS  (see  Admiralty  and  Maritime  Jurisdiction)  — 

what  are,  12. 

navigable  in  law  if  so  in  fact,  12. 

immaterial  that  rapids  and  falls  interrupt  the  flow,  12. 
NAVIGATION— 

is  interstate  commerce,  6. 
"NECESSARY  AND  PROPER"— 

construction  of  term,  4. 
NECESSITIES  OF  LIFE  (see  Anti-Trust  Act). 
NINETEENTH  SECTION— 

principle  office  of  the  Commission,  etc.,  298. 

place  of  hearing,  299. 
NINTH  SECTION— 

testimony  clause  of  unconstitutional.  252. 

suit  may  be  brought  either  before  Commission  or  in  United  States 
courts,  251. 


492  INDEX. 

References  are  to  sections. 

NOTICE  IN  NATURE  OF  DEMURRER  (see  Rules  of  Practice,  rule  5, 

pace  4U4 I . 

NOTICE  TO  THE  CARRIER— 

of  findings  by  Commission,  282. 
OBSCENE  LITERATURE— 

interstate  carriage  of  prohibited,  54. 
OCEA X   T RANS1  ORTATION— 

creates  dissimilar  circumstances  and  conditions,  178\ 

OFFICER— 

act  of  the  act  of  carrier,  310. 

OHIO  COAL  CASE,  319. 

OIL  (see  Nati  ral  Oil)  — 

rates  on  from  Oil  City  to  New  York  and  Boston,  142. 
discrimination  in  mode  of  shipment,  205. 

higher  rate  for  barrel  than  tank  car  shipments  unlawful,  205. 
higher  rates  for  less  than  car  load  than  for  car  load  of  barrels  not 

unlawful.  205. 
allowance  lor  leakage  in  tanks  and  not  in  barrels  unlawful,  205. 

OLEOMARGARINE— 

subject  of  commerce,   9. 

subject  to  taxation,  9. 

State  may  prohibit  manufacture  and  sale  of,  9. 

cannot  prohibit  its  introduction  into  state  in  original  package,.  9. 

police  power  of  State  extended  to,  54. 

OPINION  EVIDENCE   (see  Evidence,  Witnesses  Testimony). 

ORANGES— 

rate  on  from  Florida  to  New  York,  142. 

ORIGINAL  PACKAGE   (see  Wilson's  Original  Package  Bill)  — 
meaning  of  term,  16. 

time  when  taxing  power  of  State  begins,  16. 
in  relation  to  State  taxing  power,  16. 
in  relation  to  State  police  power,  16. 
meaning  of  term  •'arrival,"  17,  53. 
when  transit  ends,  16. 

!RCHARGE— 

retention  of  a  violation  of  the  law,  168. 

"OVER  THE  SAME  LINE"— 

meaning  of  term  in  section  4,  223. 

OWNERSHIP— 

rimination  based  on  ownership  of  cargo,  157. 

-TERS— 
how  far  State  may  regulate,  10. 

PACIFIC  COAST  RATE— 

to  Denver  and  Missouri  River  points,  142. 

RING  HOUSE  PRODUCTS  (see  Differentials)— 
rates  on  from  Chicago  to  New  York,  142. 
rates  on  from  Savannah  to  Florida,  142. 

PARALLEL  LINES— 

one  railroad  owning  both  should  provide  equal  advantages,  138. 

PARLOR  CAR  RATES— 

discrimination  in  between  local  and  through  passengers,  165. 

PARTIES  TO  CASES   (see  Rules  of  Practice,  rule  2,  page  402). 
all  parties  interested  are  proper  parties,  287. 

any  person  or  association  may  complain  either  for  himself  or  com- 
munity, 271. 


INDEX.  493 

References  are  to  sections. 

PARTIES  TO  CASES— continued. 

proper  and  necessary  defendants,  287. 

under  Elkins  Act,  310. 

Interstate  Commerce  Commission  as  party,  287. 

all  carriers  on  the  route  not  necessary,  279. 

in  suit  against  unincorporated  association,  331. 

in  suit  by  unincorporated  association,  271. 

owner  of  portion  of  through  line  not  necessary,  271. 

Commission  may  bring  in  all  parties  interested,  271. 

PARTY  RATES— 

government  not  entitled  to,  305. 
Party  Rate  case  discussed,  152. 

PASSES— 

issuing  of  unlawful  unless  excused  by  section  22,  166. 

no  recovery  for  injury,  if  risk  assumed,  166. 

to  officers  and  employees  do  not  include  their  families,  305. 

PASSENGERS— 

unjust  discrimination  in  service  to,  165. 

State  imposed  duty  on  master  of  vessel  to  report  arrival  of  valid, 

21. 
State  tax  on  immigrant  void,  21. 

PAUPERS— 

State  cannot  compel  gratuitous  removal  of  by  railroad,  38,  n. 
State  legislation  may  exclude,  9. 

PATENTS— 

power  to  grant,  4. 

subject  to  State  police  power,  31. 

PAYMENTS  (see  Prepayment)  — 

by  shipper  ignorant  of  discrimination  not  voluntary  and  may  be  re- 
covered  back,  120,  169. 
PEACE  OF  THE  UNITED  STATES— 

meaning  of,  4. 

enforcement  of  by  executive,  4. 

PEACHES— 

rate  on  from  Delaware  district  to  Boston,  142. 
PENALTIES   (see  Interstate  Commence  Commission,  Powers  or)  — 

for  refusal  to  testify,  261. 

corporations  subject  to,  264. 

for  violation  of  the  Act.  253. 

for  failure  to  report  accidents,  373. 

in  section  10  apply  to  employees  refusing  to  haul  freight  of  other 
roads,  80. 

for  failure  to  publish  rates  or  observe  published  rate,  310. 

as  to  rebates,  310. 

for  violation  of  Safety  Appliance  Act,  368. 

under  Anti-Trust  Act,  314,  327,  328. 

PERJURY— 

prosecution  for,  261. 

PERSONAL  SERVICES— 

equity  cannot  enjoin  performance  of,  2o6. 

"PERSON"  OR  "PERSONS"— 

meaning  of  in  Anti-Trust  Act,  348. 

corporation  a  person  within  meaning  of  fourteenth  amendment,  15, 

94,  164. 
corporation  a  person  when  necessary  to  effect  legislative  intent  in 
statutes,  264. 
PETITION   (see  Pleadings). 


494  INDEX. 

f 

References  are  to  sections. 

•PICKETING"  AND  "SOLICITING"— 
in  interstate  commerce,  85. 

PIERS.  REGULATION  OF  (see  Regulation  or-  Commerce). 

PILOTS   (see  Regulation  of  Commerce). 

photographs- 
si  Hie  tax  on.  when  void,  38,  n. 

PLEADINGS  (see  Procedure)— 

necessary  averments  for  a  cause  of  action  in  relation  to  schedules, 

122. 
no  replication.  272. 
in  equity  cases,  283. 

complaint  concerning  classification  against  whom  made,   272. 
necessary  averments  in  action  for  damages  under  section  2,  169. 
petition  to  state  what  under  section  7  Anti-Trust  Act,  342. 
petition  to  recover  penalty  must  show  what,  246. 

POLICE  POWER  (see  State  Legislation,  Regulation  of  Commerce)  — 
State  not  deprived  of  by  regulating  power  of  Congress,  9,  40. 
distinguished  from  regulation  of  commerce,  35. 
in  relation  to  sale  of  United  States  patents,  31. 
Federal  Government  as  such  has  none,  4. 

in  relation  to  inspection  of  live  stock  (see  Inspection*  Laws). 
extends  to  reasonable  inspection  of  articles  brought  from  another 
State,  9. 

POOLING   (see  Fifth  Section)  — 

forbidden. 68. 

cannot  be  lawfully  employed  as  preventive  of  rebates,  228. 

reservation   to  initial  carrier  of  power  to  route  shipment  beyond 
its  own  line  unlawful,  228. 

meaning  of  term  "pool,"  227. 

express  companies  may  pool  earnings,  230. 

as  defense  in  injunction,  231. 

i  eements  not  within  the  prohibition,  229. 

meaning  of  term  "freights,"  228. 

"physical"  pooling,  227. 

"money"  pooling,  227. 
POST  OFFICES  AND  POST  ROADS— 

power  to  establish,  4. 
POWERS  OF  GOVERNMENT  (see  Functions  of  Government). 
PREFERENCE  AND  ADVANTAGE   (see  Unjust  Discrimination)  — 

form  of  immaterial.  187. 

preference  of  locality  excused  by  competition,  175,  176. 

between  domestic  and  foreign  traffic  in  import  and  export  rates  not 
undue,  178. 

where  preference  rate  exceeds  competitive  rate,  177. 

cannot  be  alleged  by  town  which  railroad  does  not  reach,  184. 

shown  by  "demurrage,"  187. 

failure  to  publish  rate  through  to  particular  town  is,  187. 

failure  to  allow  equal  "accessorial  service"  is,  187. 

in  differential  between  carload  and  less  than  carload,  187. 

not    unjust    preference    where    circumstances    and    conditions    dis- 
similar, 187. 

against  traffic  must  involve  injury,  201. 

delay  in  furnishing  cars,  189   (see  Car  Service). 

mtee  to  party  rate  purchaser,  arrival  at  certain  time  not  pref- 
erential, 187. 


INDEX.  495 

References  are  to  sections. 

PREFERANCE  AND  ADVANTAGE— continued, 
in  denying  shipper  choice  of  route,  197. 
in  arbitrary  division  of  territory,  198. 
in  classification,  208. 

PREFERENCE  CLAUSE,  IN  CONSTITUTION— 
discussed,  3,  56. 

no  application  to  interstate  commerce,  3. 
transportation  from  United  States  to  Porto  Rico  not  included,  3. 

PRELIMINARY  INVESTIGATION— 

by  Commission  before  filing  suit  for  enforcement  of  its  orders,  un- 
necessary, 287. 

PREPAYMENT  (see  Payment)  — 

requirement  of  one  connecting  carrier  and  not  of  another  not  un- 
just discrimination,  212. 

PRESIDENT  OF  THE  UNITED  STATES— 
power  to  suspend  free  importation,  53. 

PRESUMPTIONS  ( (see  Burden  of  Proof)  — 

long  continuance  of  rate  presumption  of  reasonableness,  133,  134. 
voluntary  reduction  presumption  of  unreasonableness,  134. 

PRIMA  FACIE  CASE— 

reports  of  proceedings  before  Commission  as,  48,  277,  289. 
rulings  of  Commission  on  unreasonableness  as,  132. 

PRINTING  OF  PLEADINGS  (see  Rules  of  Practice,  rule  16,  page  409). 

PRIVATE  CARS  (see  Car  Service). 

PRIVITY  OF  CONTRACT— 

none  between  car  owner  and  shipper  where  carrier  pays  mileage, 
193. 

PORTO  RICO— 

not  a  foreign  country,  3. 

PROCEDURE  (see  Pleadings  and  Proof)  — 
before  Commission  simple,  271,  272. 
dilatory  proceedings  not  favored,  271. 
who  may  complain,  271. 
where  suit  to  be  filed,  283,  286. 

leave  of  court  unnecessary  in  suits  against  receivers,  271. 
failure  of  proof,  effect  of,  271. 
hearings,  272. 

failure  of  carrier  to  answer,  Commission  will  proceed,  272. 
no  replication  required,  272. 
hearings  orally  or  on  brief,  272. 
complaints,  how  and  by  whom  made,  272. 
how  served  upon  carriers,  270. 

immaterial  that  trade  organization  is  unincorporated,  271. 
in  federal  review  of  State  regulation  of  carriers,  96. 
suit  by  United  States  under  Anti-Trust  Act,  331. 
restraining  order  may  issue  without  notice,  331. 
proceedings  by  Commission  to  enjoin  violations,  312. 
effect  on  other  action,  312. 

PROOF  (see  Evidence)  — 

plaintiff  must  show  injury,  245. 
reasonable  time  allowed  for  making,  272. 
measure  of,  under  Anti-Trust  Act,  340. 
newspaper  reports,  etc.,  to  show  conspiracy,  82. 


-il'o  INDEX. 

References  are  to  sections. 

PROOF— continued. 

plaintiff  must  show  rate  unreasonable,  122. 

in  case  of  unpublished  rate,  245. 

failure  of  proof,  Commission  may  take  charge,  271. 

for  recovery  of  penalty,  245. 

relief  not  given  without,  273. 

in  case  asking  reparation  proof  necessary,  279. 

PROPORTION— 

as  affecting  reasonableness  of  rates,  140. 

"PROPORTIONAL  TARIFFS"— 
meaning  of  term,  195. 
State  Commission  no  control  over,  when,  195. 

PROPOSED  FINDINGS  (see  Rules  of  Practice,  Rule  14,  page  408). 

PUBLICATION  UNDER  SECTION  6  (see  Schedules,  Sixth  Section)  — 
joint  rates  must  be  duly  authorized  before  published,  129,  239. 

t  of  publication,  122,  234. 
what  is  sufficient,  237. 
contracts   and  tariffs  filed   may  be  considered  before  Commission 

without   introduction,    234. 
published  rate  conclusively  deemed  legal,  235,  310. 
enforcibility  of  unpublished  rate,  235. 
good  defense  to  action  for  damages,  121. 
of  joint  traffic  and  through  rates,  238. 
of  State  rates  in  connection  with  interstate,  238. 
excursion   rates  must  be,  238. 

schedules  need  not  be  duplicated  by  each  company,  237. 
posting  notice  that  all  rates  are  on  file  in  office  not  sufficient,  237. 
terminal  charges  must  be,  236. 
storage  charges  must  be,  236. 
rules  and  rates  of  carriage  of  private  cars,  236. 
application  to  import  and  export  rates,  112,  240. 

barges  for  refrigeration  in  transit,  118. 
failure  to  publish  when  undue  preference,  187,  255. 
failure  to  publish  or  observe,  a  misdemeanor,  310. 
reduction  of  rates  without  filing  schedule  unlawful,  238. 
increase  of  rate,  238. 
contract  for  rate  lower  than  published  rate  not  binding,  234. 

PUBLIC  CHARGE— 

State  legislation  may  exclude  persons  likely  to  become,  9. 

PUBLIC  OPINION— 

influence  of  on  construction  of  Federal  Constitution,  63. 

PUBLIC  SKSSIOXS  (see  Rules  of  Practice,  Rule  1,  page  402). 

[! -'I  IMF  NT— 

:sal  to  obey  injunction  or  other  process,  283. 

QUARANTINE  LAW'S— 

of  State  valid    (see  Regulation  of  Commerce,  Concurrent  Juris- 
di<  1 1<>  -.  ).  34. 

RAILROADS— 

carriers  for  hire,  1 1 . 

sul  ive  i  ontrol  unless  exempt  by  charter,  41. 

duty  to  carry,  41. 

Stat"  rules  and  regulai  ing,  35,  41,  93. 

ions  of  two  States,  a  corporation  of  each,  91. 
sral  review  of  State  regulation,  95. 
i  ii  i  i  aerce,  15. 

term  "railroad"  in  section  1  includes  all  bridges  and  ferries  used 
or  operated  iti  connection  with  any  railroad,  115. 


INDEX.  497 

References  are  to  sections. 
RAILROADS— continued. 

but  not  when  operated  by  the  railroad  company,  115. 

State  power  of  regulation  cannot  extend  to  interstate  traffic,  41. 

State  power  of  regulation  may  fix  a  limit  of  charge,  41. 

cannot  require  exclusive  business  of  shipper,  196. 

wholly  in  one  State  when  not  subject  to  the  Act,  105. 

when  subject  to  the  Act,  105. 

State  regulation  under  State  Commissions,  91. 

power  of  regulation  independent  of  incorporation,  92. 

regulations  may  be  made  by  railroads  for  delivery  of  freight,  196. 

regulations    may    be    made    by    railroad    respecting    reduced    rate 

ticket,  1G5. 
governmental  regulation  of,  in  England,  42. 
when  not  subject  to  section  20.  301. 
Government  Aided  (see  Act  July  1,  1862). 
reports  of  accidents  (see  Accident  Law.  per-,  l). 
Railroad  Commissions  established  in  States,  41. 

RAPID  TRANSIT— 

warrants  higher  charge,  136,  155. 

RATES  (see  Tickets,  Through  Rates,  Charges  Reasonable  and  Just, 
Carload  Rates,  Cargo  Rates)  — 

quantity  of  freight  as  affecting  rates,  148,  153. 

wholesale  rates  in  passenger  and  freight  traffic  distinguished,  154. 

limitation  by  Federal  authority  of  State  power  in  regulating  inter- 
state rates,  97. 

what  is  reasonable  in  the  limitation  of  State  authority,  98. 

character  of  freight  as  affecting  rate,  131  136. 

cost  of  service  and  needs  of  shipper  as  affecting  rates,  135. 

rapid  transit  as  affecting  rates.  136.  155. 

cost  of  handling  as  affecting  rates,  136. 

distance  as  affecting  rates,  137. 

reasonableness  of  rates  question  one  of  fact,  49,  120,  175. 

no  definite  standard  of,  in  railroad  rates,  99. 

finding  of  Commission  does  not  extend  to  ultimate  question  of,  49. 

practical  difficulties  in  the  enforcement  of,  120. 

standard  of,  under  State  statutes,  120. 

standard  of,  under  the  Act,  121. 

what  considered  in  determining,  98. 

presumption  of  reasonableness  from  long  continuance,  133,  134. 

interests  of  both  the  public  and  owner  of  property  to  be  considered, 
125. 

in  absence  of  legislation  court  must  decide,  119. 

construction  of,  by  the  Federal  courts,  -125. 

capitalization  of  railroad  as  basis  of  rates,  126. 

reasonableness  of,  under  section  1  distinguished  from  preferences 
under  section  3,  130. 

comparison  not  a  basis  for  determining  reasonableness,   133,  138. 

fixing  of  future  rate  a  legislative,  not  administrative  or  judicial, 
function,  49,  124. 

Interstate  Commerce  Commission  no  power  to  fix  rates,  47,  123. 

effect  of  Commission's  ruling  on  reasonableness  of  rates,  132. 

question  of  reasonableness  raised  by  defense  in  action  at  law,  96. 

question  of  reasonableness  raised  by  bill  in  equity,   96. 

may  be  unreasonable  because  too  low  as  well  as  too  high,  125. 

consideration  of,  in  the  courts,  138. 

immaterial  whether  railroads  combine  or  act  separately,  138. 

tax  return  of  railroad  officials  to  establish,  131. 

interstate  rates  bear  no  comparison  to  State  rates,   139. 

reasonableness  and  proportion,  140,  183. 

in  comparison  of  rates,  dissimilar  circumstances  and  conditions  are 
to  be  considered,  138. 


* 


4','S  INDEX. 

References  are  to  sections. 

KATES — continued. 

rates  on   lines  of   rival   companies  or  different   branches  of  same 

company  properly  considered,  138. 
increase  of  rates  for  purpose  of  securing  traffic  under  agreement, 

unreasonable,  138. 
standard  of  reasonableness  considered  by  the  courts  not  the  same 

as  between  carrier  and  patron,  97. 
presumption  of  reasonableness  of  State  imposed  rates,  97. 
raic  per  ton  per  mile  rule.  128. 
reduction  of  rates  without  consent  of  connecting  carrier  or  filing 

of  schedule,  234. 
three  days'  notice  required.  233,  238. 
presumption  of  unreasonableness,  134. 

r  continuous  line  where  no  rate  established,  238. 
rates  may  be  reasonable  in  one  part  of  country  and  not  in  another, 

138. 
no  connection  between  rates  in  opposite  directions,  138. 
filed  or  participated  in,  deemed  legal   (see  Elkins  Act). 
transfer  from  rate  to  another  does  not  determine  future  rate,  209. 
commodity  rate  for  intended  settlers  only,  208. 
rates  cannot  be  apportioned  according  to  milage,  109. 
share  of  through  rate  not  measure  of  reasonable  rate,  138. 
apportionment  of  through  rates  to  different  parts  of  line  as  signifi- 

cent  of  reasonablenes,  138. 
illustrative  rates  on  different  commodities  between  different  points, 

142. 

REBATES  (see  Unjust  Discrimination,  Preference  and  Advantage)  — 
given  to  secure  business,  unlawful,  151. 

contiacts  for,  made  prior  to  taking  effect  of  Act  unenforcible  there- 
after, 169. 

REGULATION  OF  COMMERCE— 

exclusive  jurisdiction  of  Congress — 

distinction    between    power   over   interstate   and   foreign   com- 
merce and  with  Indian  tribes,  2,  36. 

all  subjects  national  in  nature  or  requiring  one  uniform  sys- 
tem, 20,  21. 

all   interstate  shipments,  6. 

all   interstate  bridges,  6,  22. 

release  of  the  Federal  regulating  power.  52. 

regulation  by  the  delegation  of  power,  53. 

the  developing  construction  of  the  Federal  power,  63. 

not  the  exercise,   but  the  existence  of  the  power  in  Congress 
that  invalidates  State  laws,  36,  39,  45. 

regulation  in  relation  to  labor,  78. 

lieu  inning  of  Federal  regulation,  39. 

merce  may  be  regulated  by  inaction  of  Congress,  21,  35,  36, 
39. 

unexercised  Federal  regulating  power,  56. 

unexercised   Federal   powers   in    matters   of   State   legislation, 
56,  57. 

question  for  Supreme  Court  to  determine  whether  State  laws 
abrogated  by  Act  of  Congress,  56. 

regulation  by  taxing  power,  58. 

prohibition  and  regulation,  57. 

ulation  of  navigation  over  inland  waters,  22. 

federal  and  State  courts,  jurisdiction  of,  44. 

inaction  of  Congress  in  foreign  and  interstate  commerce  dis- 
tinguished, 36, 

i.   LCtion  of  Congress  means  interstate  commerce  must  be  free, 


INDEX.  499 

References  are  to  sections. 

REGULATION  OF  COMMERCE— continued. 

State  regulation  under  rules  of  common  law  in  State  court,  31. 
Supreme  Court  on  the  three  classes,  22. 
by  national  incorporation,  1,  60. 
concurrent  jurisdiction   includes — 
regulation  of  pilots,  23. 
quarintine  laws,  2;:,  34. 
inspection  laws,  23,  32. 
live  stock  laws,  32,  33. 
policing  of  harbors,  32,  33. 
improvement  of  navigable  waters,  23. 
regulation  of  wharves,  23. 

regulation  of  bridges  over  navigable  waters,  23. 
regulation  of  piers,  23. 
regulation  of  docks,  23. 
construction  of  bridges  across  navigable  waters  of  a  State,  23, 

49. 
establishing  of  ferries  across  navigable  waters  of  a  State,  23, 

49. 
regulation  of  telegraph  poles,  wires,  etc.,  24. 
exclusion  of  diseased  cattle,  32. 
in  interstate  railroad  traffic,  25,  40. 
action  of  Congress  renders  State  law  void,  22,  25,  27. 
concurrent  and  exclusive  powers  distinguished,   21. 
effect  of  police  laws  of  State  on  interstate  carriers,  25. 
effect  of  Act  of  Congress  on  police  laws  of  State,  25. 
State  laws  prohibiting  running  of  freight  trains  on  Sunday,  26. 
exclusive  State  jurisdiction  includes — 
construction  of  highways,  22. 
construction  of  turnpikes,  22. 

construction  of  railways  between  points  in  the  same  State,  22. 
construction  of  canals  between  points  in  the  same  State,  22. 
operation  of  bridges  over  navigable  streams,  22    (see  contra), 

408. 
regulation  of  domestic  commerce,  101. 
State  may  make  reasonable  regulations  for,  101. 
State  may  enforce  facilities  for  transportation  of  freight,  101. 
State  may  alter,  amend,  or  repeal  charter,  when,  101. 
State  may  prohibit  discrimination,   101. 
State    may    prohibit    consolidation    of    parallel    or    competing 

lines,  101. 
State  may  require  erection  of  stations  along  line  of  railroad, 

101.     ■ 

REHEARINGS  (see  Rules  of  Peactice,  Rule  15,  page  408. 

RELIEF  FROM  OPERATION  OF  SECTION  4    (see  Fourth   Section, 
proviso  of). 

REMOVAL  OF  CAUSE  TO  FEDERAL  COURT— 

national  corporation  may  remove,  59. 

no  jurisdiction  on  removal  where  State  court  had  none,  43,  248. 
REMOVAL  OF  PERSON— 

from  one  district  to  another  for  trial,  259. 
REPARATION    (see  Damages)  — 

before  investigation  relieves  carrier  from  liability,  270. 

REPORTS— 

carriers  must  render  annual,  to  Commission,  300. 

what  reports  to  contain,  300. 

Federal  courts  no  jurisdiction  in  mandamus  to  compel,  301. 

Commission  to  render  annual,  to  Congress,  302. 

REPORTS  OF  ACCIDENTS  (see  Accident  Law,  sec.  1). 


INDEX. 

References  are  to  sections. 

REPORTS  OF  DECISIONS— 

Int.  Com.  Rep.,  280. 

I.  C.  C.  i;..  280. 
"RES  JUDICATA"  (see  Judicial  Precedent). 

RESTRAINT  OF  TRADE— 

contracts  in,  at  common  law  and  under  Anti-Trust  Act,  66,  69,  70, 
74. 

contracts  in.  how  construed.  70. 

con?'  ricting  sales  by  rebates  not  unlawful,  71. 

combinations  between  interstate  railroads  suppressing  competi- 
tion. 71. 

agreements  for  charges  for  local  facilities  not  included,  68. 

commodity  may  be  subject  of  unlawful  agreement,  also  of  State 
taxation.  68. 

combinations  in  restraint  of  interstate  commerce  unlawful,  though 
subject  of  contract  within  jurisdiction  of  a, State.  84. 

combination  for  employment  of  none  but  union  labor  may  be,  84. 

complete  monopoly  unnecessary,  sufficient  if  prices  enhanced  and 
competition   suppressed,   317. 

incidental  restraint  of  trade  not  unlawful,  322. 

REVISORY  POWER   (see  Conns). 

ROLLING  STOCK  (see  Car  Service)  — 
not  subject  to  attachment,  when.  37. 

RULES  AND  REGULATIONS— 

respecting  reduced  rate  tickets,  165. 

collection  of  extra  fare  from  passenger  without  ticket,  165. 

unreasonable,  may  be  discriminative,  158. 

SAFETY  APPLIANCE  ACT— 

Section  1.  352. 

hi  2,  357. 

on  3.  263. 

or  ',.  363. 

36o. 
5,  366. 

Ion  8,  37o. 
railroads  subject  to  this  Act,  353. 
common  law  duty  of  carrier  in  relation  to  safety  appliances,  354. 

tition  and  procedure  under  the  Act,  355. 
question  for  jury  whether  railroads  comply  with  the  Act,  355. 

tion  in  suits  under  the  Act,  356. 
coupler  equipment  under  section  2,  358. 
automatic  couplers  of  different  makes,  359. 

aing  of  word  "car"  in  section  2,  360. 
when  "engaged  in"  interstate  commerce,  361,  370,  371. 

Li    p1  ion  of  risk,  372,  37:;. 
contributory  ace,  373. 

Amendment  i  b  2,  1903,  374. 

on  of  the  Commission  in  delaying  enforcement  of  the  Act, 
371. 
the  use,  and  i  rwnership,  of  defective  cars  forbidden,  364. 

driving  wheel  and  train  brakes  (see  sec.  1). 
automatic  couplers  (see  sec.  2). 

when  farriers  may  refuse  to  receive  cars  (see  sec.  3). 
grab-irons  and  handholds  (see  sec.  4). 
standard  heighl  of  draw-bars  for  freight  cars  (see  sec.  5). 
Ity  for  violations  of  Act  (see  sec.  6). 
i   by  prosecution,  369. 


INDEX.  501 

References  are  to  sections. 
SALE— 

as  incident  of  manufacture,  distinguished  from  commerce,  315. 

SALT— 

rates  on,  142. 

SAVINGS  BANKS  IN  DISTRICT  OF  COLUMBIA— 
incorporated  by  Congress,  59. 

SCHEDULE    (see  Publication)  — 
what  is  included  in,  236. 

filing  of  raises  no  presumption  of  legality,  234. 
failure  to  challenge  does  not  make  unlawful  rate  lawful,  234. 
what  is  sufficient  publication  and  filing,  237. 

SECOND    SECTION    (see    Preference    and    Advantage,    Unjust    Dis- 
crimination)— 
origin  of  the  section,  144. 
purpose  of  the  section,  145. 

docs  not  deal  with  preferences  in  favor  of  or  against  localities,  145. 
does  not  deal  with  discrimination  between  kinds  of  traffic,  145. 
effectiveness  of  the  section,  146. 
application  of  the  section,  167. 

no  application  to  cases  occurring  before  Act  passed,  169. 
meaning  of  a  "like  kind  of  traffic,"  167. 
enforcement  of  the  section,  169. 
enforcement  by  injunction,  170. 
what  constitutes  violation  of  section,  144. 

SECRETARY  OF  AGRICULTURE  (see  Live  Stock). 

SECRETARY  OF  WAR— 

powers  and  duty  of  in  regulation  of  commerce,  54. 

SEIZURE  AND  CONDEMNATION   OF  PROPERTY— 
how  enforced  under  section  6,  Anti-Trust  Act,  337. 

SERVICE   (see  Rates,  Accessorial  Services)  — 

difference  in  warrants,  difference  in  rates,  149-155. 

remedy  where  special  service  charged  for  but  not  rendered,  155. 

SERVICE  OF  PAPERS  (see  Rules  of  Practice,  Rule  6,  page  404). 
SEVENTEENTH    SECTION— 

Interstate  Commerce  Commission — Form  of  Procedure,  295. 

SEVENTH    SECTION— 

considered  in  connection  with  section  3,  242. 
judicial  application  of  section,  242. 

continuous  carriage  of  freight  from  place  of  shipment  to  place  of 
destination,  241. 

SHEEP— 

sheep  driven  from  one  State  to  another  subject  of  interstate  com- 
merce, 16. 

SHERMAN  ANTI-TRUST  ACT  (see  Anti-Trust  Act  of  1890). 
SHIPMENT— 

State  cannot  impose  penalty  for  disobedience  of,  38,  n. 
SHIPPER  AND  CARRIER  THE  SAME— 

discrimination  by  carrier  in  favor  of  himself  as  shipper,  161. 

SHIPPERS'  ORDERS— 

State  cannot  impose  penalty  for  disobedience  of,  38. 

SIDE  TRACK  AND  CONNECTIONS— 

State  legislation  concerning,  196. 

railroads  under  no  obligation  to  build  spur  track,  196. 

no  discrimination  to  build  for  one  and  refuse  to  another,  196. 


502  INDEX. 

References  are  to  sections. 

SIXTEENTH  SECTION— 

petition  to  United  States  courts  in  cases  of  disobedience  to  orders 
of  Commission,  283. 

SIXTH  SECTION  (see  Publication)— 

printing  and  posting  of  schedules  of  rates,  fares  and  charges,  232. 
Amendments  of  March  2  and  February  19th,  1903,  233. 

"SOLICITING"— 

in  interstate  commerce,  85. 

SOUTH  CAROLINA— 

inspection  laws  of,  invalid,  23. 

SPARKS  FROM  ENGINE— 

State  may  impose  liability  on  railroads  for  damages  done  by,  38,  n. 

SPECIAL  PRIVILEGE    (see  Interstate  Commerce  Commission,  Pow- 
ers of)  — 
SPECIAL  SERVICE   (see  Rates,  Accessorial  Services). 
SPEED  OF  TRAINS  WITHIN  MUNICIPAL  LIMITS— 

may  be  regulated  by  State  laws,  27. 
SPIRITUOUS  LIQUORS   (see  Wilson  Bill  of  1890)  — 

subject  to  commerce,  9. 

State  may  prohibit  introduction  of,  21. 

State  cannot  prohibit  introduction  and  sale  in  original  package,  9. 

State  may  prohibit  domestic  manufacture  and  sale  of,  9. 

South  Carolina  dispensary  laws  invalid,  35. 

SPUR  ON  SIDE  TRACK  (see  Side  Tracks  and  Connections). 

STATE  (see  Regulation  of  Commerce)  — 

not  a  person   or   corporation   within   meaning  of  section   7,   Anti- 
Trust  Act,  334. 
power  to  regulate  rates  by  legislature  or  by  State  Commission,  91. 

STATE  ANTI-TRUST  LAW— 

in  connection  with  14th  Amendment,  102. 

protection  of  carrier  against  discriminative  State  legislation,  100. 

discriminations  may  be  prohibited,  101. 

facilities  for  interchange  of  traffic  may  be  enjoined,  101. 

reasonableness  of  contracts  between  carrier  and  patron  or  other 

carrier,  101. 
consolidation  of  parallel  and  competitive  lines  may  be  prohibited, 

101. 
statute   valid    punishing   wilful    or   malicious    injury   to   another's 

business,  102. 
statin e  invalid  which  punishes  offense  committed  by  person  outside 

of  State,  102. 
statute  invalid  which  exempts  certain  class  of  the  community,  102. 

STATE  COMMISSION— 

regulation  of  railroads,  91. 
subject  to  federal  review,  94,  97. 

may  be  delegated  the  power  to  fix  schedule  of  rates,  91. 
expenses  of,  how  apportioned,  1)1. 
limitation  of  authority  in  domestic  commerce,  93. 
suit  against,  not  against  State  within  meaning  of  Eleventh  Amend- 
ment 
no  control  over  proportional  tariffs,  195. 

STATE  COURTS— 

on  the  commerce  clans",  38. 

jurisdiction  of,  in  the  regulation  of  commerce,  44. 

jurisdiction  in  common  law  of  interstate  commerce,  43. 


INDEX.  503 

References  are  to  sections. 

STATE  LEGISLATION— 

protection  of  carrier  against  discriminating,  100. 

STATE  RAILROAD  LEGISLATION— 

classification  of,  valid  if  reasonable,  103. 

illustrative  cases  on,  103. 
STATIONS— 

State  statute  valid  requiring  erection  of,  101. 

STIPULATIONS  (see  Rules  of  Practice,  Rule  10,  page  405). 

STOCKYARDS— 

extra  charge  for  delivery  to,  when  off  main  line,  117. 

Stockyards  case,  69. 

State  statute  regulating  charge  of  one  only,  invalid,  103. 

STOPPAGE  IN  TRANSIT  PRIVILEGES   (see  Special  Privileges)  — 

discussed,  163. 

unjust  discrimination  through  abuse  of,  164. 

includes  right  of  milling  grain  in  transit,  163,  194. 

right  of  connecting  carrier  as  to,  218. 

includes  right  of  compressing  cotton,  163.  194. 

includes  right  of  manufacture  of  logs  into  lumber,  163,  194. 

does  not  include  stop  between  point  of  purchase  and  point  of  sale, 
194. 

the  "Tap  Line"  case,  163,  194. 
STOPPAGE   OF  TRAINS  AT   CERTAIN   STATIONS— 

to  what  extent  State  may  compel,  29. 
STORAGE    (see  Delivery,   Cartage)  — 

no  additional  duty  imposed  by  section  1,  116. 

charges  for  must  be  published,  236. 

services,  if  rendered,  must  be  impartial  and  reasonable,  116. 

unjust  discrimination  and  undue  preference  may  be  based  on,  116, 
162,  187. 

charge  for,  in  depot  may  be  higher  than  in  warehouse,  116. 

of  grain  in  elevators  at  stoppage  points,  116,  163. 

free  storage  as  basis  of  unjust  discrimination,  162. 

right  of  carrier  to  contract  for  storage  of  through  grain,  in  eleva- 
tors at  terminals  in  transit,  162. 

STRAWBERRIES— 

rates  on  from  Florida  to  New  York,  142. 
STREET  RAILROAD— 

city  ordinance  prohibiting  discrimination,  void,  38,  n. 

STRIKES  AND  BOYCOTTS— 

distinguished    (see  Conspiracy). 

boycott  may  result  in  conspiracy,  80. 

concerted  quitting  employment  may  be  lawful,  81. 

when  concerted  quitting  unlawful,  81. 

boycott  of  any  form  of  interstate  commerce,  unlawful,  84. 

immaterial  that  no  violence  results,  81. 

peaceable  strike  lawful,  257. 

sympathetic  strikes  and  boycotts,  81. 

SUBPCENAS  (see  Rules  of  Practice,  Rule  13,  page  407)  — 
issued  according  to  practice  in  Federal  courts,  261,  269. 
how  served  in  bringing  in  parties,  335. 

SUCCESSORS  OR  RAILROAD— 

bound  by  order  of  Commission  or  doctrine  of  lis  pendens,  288. 

SUGAR— 

rates  on  from  New  Orleans  to  Wichita,  Kan.,  142. 

SUGAR  TRUST  CASE,  68. 


INDEX. 

References  are  to  sections. 
SUNDAY  LAWS— 

State  may  prohibit  running  of  freight  trains  on  Sunday,  26,  40. 
in  general.  26. 

SUPERSEDEAS  (see  Appeal). 

SURFACE  CROSSINGS— 

State  law  for  protection  of,  valid,  27. 

SWITCHING  RAILROAD— 

subject  to  State  control  when  doing  local  business.  213. 

when  not  subject  to  the  Interstate  Commerce  Act,  108. 
SYMPATHETIC   STRIKES  AND   BOYCOTTS    (see   Strikes   and  Boy- 

COTTS). 

TANK  CARS   (see  Oil)  — 

duty  of  carrier  to  furnish,  191,  205. 

TARIFFS  (see  Rates,  Theough  Rates). 

TAXATION— 

regulation  of  commerce  through,  59. 

State  taxation  and  interstate  commerce,  lc-. 

State  taxing  power  of  corporations  engaged  in  interstate  com- 
merce, 20. 

property  in  commercial  transit  free  from  State  taxation,  16. 

business  of  carrying  on  interstate  commerce  not  taxable,  18,  20,  35. 

intangible  property,  how  located  in  State,  19. 

the  "unit  rule,"  19. 

the  "average  habitual  use"  rule,  19. 

the  "mileage  basis"  rule,  19. 

receipts  from  interstate  commerce  cannot  be  taxed,  19. 

intent  to  export  does  not  free  from  State  taxation,  6,  114. 

franchise  taxation,  20. 

tax  may  be  apportioned  according  to  milage,  109. 

on  broker,  when  lawful,  7. 

State  tax  on  telegraph  companies,  24. 

State  tax  on  alien  passengers  void,  6. 

Congress,  subject  to  limitations,  may  impose  taxes  on  subjects  of 
commerce  and  on  rights  to  carry  on,  58. 

TEAMS— 

transportation  by,  not  subject  to  the  Act,  105. 

TELEGRAPH  COMPANIES— 
in  interstate  commerce,  15. 
cannot  be  excluded  by  Stat. 
State  license  fee  for  use  of  streets,  20. 
power  of  eminent  domain,  50. 

interstate  business  governed  by  rules  of  common  law.  50. 
powers  of  under  act  of  L862,  50. 
does  not  include  railroad  property,  50. 

powers  of  under  acl   of  1866,  50  (see  Act  of  July,  24.  1866). 
State  statute  void  conferring  exclusive  rights  on  State  company,  50. 

TELEGRAPH  MESSAGES— 

when  between  States  are  interstate  commerce,  6. 

are  interstate  commerce,  when  interstate,  6. 

cannol  be  taxed  by  State,  24. 

State  may  prescribe  delivery  in  State,  24. 

State  may  tax  intrastate  messages,  24. 

State  cannot  prescribe  delivery  outside  of  State,  24. 

TELEPHONE  COMPANIES— 

in  interstate  commerce,  15. 

not  included  in  Act  of  1866,  51. 


INDEX. 


References  are  to  sections. 


505 


TELEPHONE  MESSAGES— 

are  interstate  commerce,  when  interstate,  6. 
Act  of  July  24,  1866,  not  applicable  to,  6. 

TENNESSEE  COAL  CASE,  319. 

TENTH  AMENDMENT  TO  CONSTITUTION,  1,  4. 

TENTH  SECTION— 

as  amended  March  2,  1899,  253,  254. 

amendments  of  1903,  255. 

illegal  combinations  under,  256. 

construction  of  section,  258. 

essentials  of  offense  under  section  10,  258. 

TERMINALS  (see  Facilities  fob  Interchange  of  Traffic,  Tracks  and 
Terminal  Facilities)  — 
State  and  municipal  control  of,  214. 

no  duty  to  furnish  same  facilities  for  all  kinds  of  traffic,  196. 
charges  must  be  published,  236. 

extra  charge  allowed  for  delivery  off  main  line,  236. 
on  live  stock  at  Chicago,  142. 

TERRITORIAL  COURTS— 

jurisdiction  of  under  Interstate  Commerce  and  Anti-Trust  Acts,  252. 

TESTIMONY  (see  Ninth  Sectton;  Evidence,  Witnesses,  Immunity)  — 
experts  to  determine  difference  in  cost  of  moving  between  local  and 

through  freight,  127. 
in  determining  reasonableness  of  rates,  131. 
self-incriminating,  263,  349. 
section  nine  compelling,  unconstitutional,  252. 
in  circuit  court  not  limited  to  that  before  Commission,  289. 

THIRD  SECTION  (see  Unjust  Discrimination,  Preference  and  Ad- 
vantage, Localities,  Kinds  of  Traffic,  Intercharge  of  Traf- 
fic)— 

origin  of,  173. 

relation  to  sections  1  and  2,  174. 

relation  to  section  4,  175. 

all  discrimination  not  included,  173. 

discrimination  must  be  undue  or  unreasonable,  173. 

not  limited  to  discrimination  in  rates  alone,  174. 

construction  of,  as  to  facilities  for  interchange  of  traffic,  211,  213. 

THIRTEENTH  SECTION  (see  Procedure,  Pleadings  and  Proof,  Bur- 
den of  Proof,  Production  of  Books  and  Papers,  Judicial  Pre- 
cedent) . 

THROUGH  RATE— 

agreements  for  division  of  may  be  unlawful  (see  Pooling,  Fifth 
Section)  — 

refusal  to  give,  when  not  unjust  discrimination,  184. 

admit  of  great  variety,  128. 

favored  because  cheaper  rate  result,  128. 

relation  of  proportion  of,  to  the  rate  over  the  same  distance  along 
same  line  must  be  reasonable,  128. 

responsibility  for  through  rates,  129. 

cannot  be  relieved  from  by  breaking  haul  in  two,  129. 

not  responsible  for  rate  given  merely  for  information,  129. 

where  lines  of  several  carriers  are  conducted  as  one  system  part- 
nership establishd,  129. 

ownership  of  stock  or  bonds  of  another  road  does  not  show  such 
partnership,  129. 


506  INDEX. 

■References  are  to  sections. 

THROUGH  ROUTING  (see  Local  and  Through  Traffic)— 

matter  of  contract,  10S,  12S,  211,  216,  218,  242. 

Commission  no  power  to  compel,  108,  211,  242. 

not  compelled  by  section  3,  211. 

right  of  to  the  exclusion  of  others,  216. 

court  no  power  to  compel,  211. 

Act  of  June  15,  1866,  does  not  compel,  40. 

to  establish  common  control  management,  etc.,  108. 

agreements  controlling  unlawful  (see  Fifth  Section,  Pooling). 
TICKETS— 

State  may  prohibit  sale  of  by  unauthorized  persons,  38,  n. 

State  may  prescribe  hours  for  sale  of,  38.  n. 

State  cannot  make  ticket  binding  on  railroad  unreasonable  time, 
38,  n. 

State  regulation  in  general,  100. 

miscellaneous  kinds,  303,  307. 

milease,  excursion  and  commutation,  issuance  not  compulsory,  306, 
307. 

withdrawal  of  at  will,  307. 

sale  of.  303. 

party  rates  lawful,  152. 

land  explorers'  tickets  lawful,  152. 

settlers'  tickets  lawful,  152. 

immigrant  tickets  lawful,  152. 

reduced  tickets  permissive  but  not  compulsory,  306. 

reduced  tickets  if  issued  must  be  done  impartially,  306. 

TIME— 

allowed  for  making  proof,  272. 

of  closing  freight  station  may  effect  unjust  discrimination,  188. 

contract  for  given  time  of  arrival  enforcible,  187. 

TOBACCO— 

subject  of  commerce,  9. 

State  cannot  prohibit   introduction  and  sale   of  in  original  pack- 
age, 9. 
State  may  prohibit  domestic  manufacture  and  sale  of,  9. 
State  may  prohibit  introduction  not  in  original  package,  23. 

TOLL— 

State  may  exact  for  use  of  navigable  waters,  when,  23. 

TONNAGE  OF  VESSELS— 

State  may  require  list  of,  when,  3S,  n. 

TRACKAGE— 

contract  right  of.  217. 

Commission  no  power  to  interfere  with,  217. 

TRACKS   AND  TERMINAL  FACILITIES    (see  Facilities  for  Intek- 
(  hange  of  Traffic,  Terminals)  — 
meaning  of  term  in  section  3,  211. 

TRADE  MARKS— 

when  Interstate  commerce,  7. 

TRADE  UNIONS— 

incorporation  of,  78. 

defined,  374. 

incorporation  act,  59,  374. 

amended  by  Act  of  June  1,  1888,  78. 

no  incorporation  under  up  to  Jan.  1,  1905,  59. 

the  courts  on.  T'.t. 

constitution,  rules  and  by-laws,  374. 

duties  of  officers,  374. 

headquarters-.  ::7!. 


INDEX.  507 

References  are  to  sections. 
TRADING  CORPORATIONS   (see  Foreign  Corporations). 

TRAFFIC— 

is  interstate  commerce,  6. 

TRAINS— 

State  law  may  require  posting  notice  of  time  of  arrival,  38,  n. 
TRANS-CONTINENTAL  SHIPMENTS— 

rates  on  from  New  York  and  Boston,  142. 
TRANSFER  COMPANIES— 

discrimination  between  by  carriers,  211. 
TRANSFER  OF  FREIGHT,  PASSENGERS,  ETC.— 

State  cannot  require  at  certain  points,  38,  n. 

TRANSPORTATION— 

court  of,  proposed,  48. 

is  commerce,  316. 

of  persons  and  freight  is  interstate  commerce.  6. 

through  a  State,  when  subject  to  the  Act,  6,  109. 
TRIAL— 
'     place  of,  310. 

removal  of  United  States  prisoners  for,  259. 

TRUST  COMPANIES  IN  DISTRICT  OF  COLUMBIA— 
incorporated  by  Congress,  59. 

TURN-PIKES— 

construction  of,  subject  to  State  control,  22. 

TWELFTH  SECTION  (see  Witnesses)  — 

power  and  duty  of  Commission  to  enquire  into  business  of  carriers, 
261. 

amendments  to,  262. 

general  powers  and  duties  of  Interstate  Commerce  Commission,  269. 

third  paragraph  held  unconstitutional,  263. 
TWENTY-SECOND  SECTION— 

persons  and  property  that  may  be  carried  free  or  at  reduced  rates, 
303. 

illustrative  and  not  exclusive,  305. 

permissive  only,  306. 

amendment  of  March  2,  1889,  304. 

amendment  of  1895,  304. 

withdrawal  of  commutation  tickets,  307. 

TWENTY-FIRST  SECTION— 

Commission  to  render  annual  reports  to  Congress,  302. 

UNDER  BILLING— 

a  means  of  unjust  discrimination,  159. 

"UNDER  SIMILAR  CIRCUMSTANCES  AND  CONDITIONS"   (see  Cir- 
cumstances and  Conditions)  — 

term  found  in  sections  2  and  4,  150,  221. 
UNDUE  PREFERENCE    (see  Preference  and   Advantage). 
UNJUST  DISCRIMINATION- 
UNJUST  DISCRIMINATION  UNDER  SECTION  2— 

essential  elements  of,  144. 

different  forms  of,  159. 

must  be  based  on  difference  in  cost  of  service,  153. 

common  law  as  to  discrimination,  147. 

common  law  right  of  discrimination  not  unlimited,  148. 

in  abuse  of  stoppage  in  transit  privileges,  164. 

payment  of  rebate  not  necessarily  unlawful,  167. 

not  unlawful  where  traffic  is  of  different  kinds,  167. 


INDEX. 

References  are  to  sections. 

UNJUST  DISCRIM 1  NATION— continued. 

meaning  of  "like  kind  of  traffic,"  167. 

consists  rn  doing  for  or  allowing  to  one  party  of  place  what  is  de- 
nied to  another.  1G7. 

refusal  to  pay  mileage  to  private  car  company  not  unlawful,  1G7. 

discrimination  based  solely  on  motive  of  shipper  unlawful,  167. 

discriminations  based  solely  on  quantity  of  freight  unlawful,  148, 
153. 

no  discrimination  where  service  different,  149,  155. 

in  car  service,  159   (see  Car  Service). 

in  cargo  rates,  158. 

in  carload  and  less  than  carload  rates,  156,  157. 

in  manufacturers'  rates  on  coal,  159. 

in  rebates  for  use  of  livestock  or  private  cars,  159. 

in  exaction  of  unreasonable  rent  for  private  cars,  159. 

in  unjust  classification,  159. 

in  commissions  paid  to  soliciting  agents,  159. 

in  combination  rates  less  than  tariff  rates,  159. 

in  under  billing,  159. 

in  billing  of  net  weight,  159. 

through  interest  in  connecting  company,  160. 

by  carrier  in  favor  of  itself  as  shipper,  161,  190. 

in  storage  of  goods,  162. 

in  passenger  service,  154,  165. 

in  retention  of  overcharge,  168. 

in  division  of  joint  rates,  160,  161. 

in  division  or  rates  with  terminal  companies,  146. 

carrier  may  discriminate  in  favor  of  himself  as  shipper,  190. 

all  forms  of  secret  rates  and  rebates,  159. 

merely  making  or  offering  illegal  rates,  not,  245. 

refusal  to  give  through  rate  lawful  if  impartial,  184. 

railroad  cannot  discriminate  against  town  it  does  not  reach,  184. 

higher  rate  to  point  on  branch  line  not  discriminative,  187. 
"UNIT  RULE,"  19. 
•A  HE  OF  RAILROAD  PROPERTY— 

how  estimated,  1 2<;. 

::tables— 

rates  on  from  Florida  to  New  York,  142. 

YISITORIAL  POWER   ((see  Corporations)  — 

re  has  exclusive  over  State  corporations,  59. 
Congress  has  over  federal  corporations,  61. 

ONS— 
i  ransportation  by  not  subject  to  the  Act,  105. 

HINGTON  SHINGLE  TRUST  CASE,  70,  321. 
::!t  TRANSPORTATION— 
not  subject  to  the  Act,  105. 

WEIGHT  OF  CARLOADS— 

reasonable  regulations  respecting,  not  undue  preference,  202. 

WHARVES,    REGULATION  OF    (see   Regulation  of  Commerce). 
WHEAT  HALS  in   Rati:). 

WHOLESALE   AND  RETAIL  RATES— 

in  freighl  and  passenger  true  distinguished,  153,  151. 

WILD  GAME— 

as  subject  of  Interstate  commerce,  10. 

ite  may  prohibit   killing  with  intent  to  export,  10. 
isons  for  the  rule,  10. 


INDEX.  509 

References  are  to  sections. 

WILSON'S  ORIGINAL  PACKAGE  BILL  OF  1890^ 

purpose  and  validity  of,  17. 

not  a  delegation  of  federal  power,  52. 

meaning  of  term  "arrival,"  17,  52. 
WITNESSES   (see  Immunity,  Testimony,  Rules  or  Practice,  rule  13, 
page  407)  — 

summoning  of,  under  section  12.  261,  263. 

attendance  and  testimony  of,  261. 

production  of  documentary  evidence,  261. 

self-incriminating  testimony,  the  compelling  of,  263,  312. 

penalties   for  refusing  to  testify,  extends  only  to  witness  person- 
ally, 264. 

probative  effect  of,  265. 

power  of  court  to  enforce  testimony  before  Commission,  267. 

relevancy  of  testimony  before  the  Commission,  268. 

amendment  of  Feb.  11,  1893,  263. 

only  refers  to  testimony  before  the  Commission,  264. 

fees  of,  296. 

cannot  refuse  to  testify  on  ground  of  implicating  employer,  264. 

may  be  summoned  before  the  Commission  from  any  part  of  the 
United  States,  267. 
WRIT  OF  ERROR— 

to  highest  State  court  where  federal  right  denied,  96. 


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